The New Board Offers a Lesson on Conduct Unbecoming

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By Deborah Hopkins, May 9, 2022

As new cases start coming out of the MSPB after its 5-year wait for a quorum, cases containing lessons with broad applicability to Federal agencies are still few and far between. But a recent decision, involving an appellant’s removal based on conduct unbecoming a Federal manager, caught my attention. The agency charged the employee with 18 specifications. After a 5-day hearing, the Administrative Judge (AJ) found that the agency failed to prove any of the specifications supporting the charge, and ordered the agency to reinstate the employee. The agency filed a PFR.

In its decision, the Board reiterated that a charge of conduct unbecoming has no specific elements of proof; the agency establishes the charge by proving the appellant committed the acts alleged under this broad label. Then it turned its attention to the specifications, a number of which the Board said did evidence conduct unbecoming, and several that did not. Let’s take a look.

The below specifications are conduct unbecoming.

  • During a meeting with another agency employee, the appellant held up a copy of an email the employee had sent him, which was seeking clarification about pay raises, and the appellant said, “[L]ooking at this email … I found it [expletive] offensive.” (FELTG’s best guess is that the expletive started with the letter “f” and rhymes with “trucking,” which we confirmed after reading the initial decision. And with that please, new MSPB, would you consider ending the practice of sanitizing expletives in your opinions? Let the words speak for themselves.)
  • In a meeting with a fellow manager about outsourcing information technology services, the appellant told the manager about a specific employee who had filed an EEO complaint in order to illustrate that one advantage of outsourcing is that the agency does not have to deal with personnel matters such as EEO complaints.
  • During a meeting with several colleagues, the appellant placed his hand over a Project Director’s mouth to prevent him from making further comments.
  • The appellant intimidated two attorneys who wrote a draft memo for the Director and told them that issuing the memo would be a “career ender.”
  • After he received a Level 3 performance rating, the appellant asked the HR Director to negotiate with the agency’s Acting Director on his behalf for a higher rating so that he would receive a bonus, “thus placing the HR Director in the untenable position of either refusing his supervisor’s request or negotiating with his former second-level supervisor for a better performance rating for his supervisor.”

These specifications are not conduct unbecoming.

  • During a meeting with the EEO Director, the HR Director, the HR Deputy Director, and agency attorneys about anonymous EEO complaints, the appellant commented that employees should not be allowed to make anonymous EEO complaints and that they should have more “skin in the game.”
  • The appellant told the agency’s EEO and Diversity Director and an EEO Counselor that he did not believe any of the complaints about the HR Deputy Director, and that if there were any more complaints about her there would be serious consequences. (While the Board found this behavior troubling, the agency’s lack of discipline of the employee when he made the comment several years earlier meant they failed to prove this specification, because the agency “merely [took] “the remedial step of advising the appellant of the legal and policy importance of allowing employees to file anonymous internal complaints.)
  • The appellant stated in front of a group of employees that a fellow senior-level employee should be put on a PIP.
  • The appellant told a fellow manager that the allegations in her grievance against the agency’s CIO would be reflected in the CIO’s performance evaluation.
  • The appellant “became agitated” when the Acting Director questioned him about a workplace matter.

Not all 18 specifications are listed; a number of specifications the AJ found the agency did not prove were left undisturbed because of the AJ’s credibility assessments of the evidence at hearing. Hornsby v. FHFA, DC-0752-15-0576-I-2 (Apr. 28, 2022)(NP).

Quite a lot in a non-precedential case, wouldn’t you say? We’ll be discussing a lot more takeaways at the July 20 virtual event Back on Board: Keeping Up with the New MSPB. [email protected]

Ask FELTG: If an employee with a disability can perform his job at the worksite, why would telework as a reasonable accommodation be necessary?

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It wouldn’t be necessary, though the agency could still choose to grant telework as the accommodation if it wanted to. EEOC guidance suggests that the employee’s preference on accommodation should be considered, but ultimately the agency gets to choose the accommodation. See Complainant v. Army, EEOC Appeal No. 0120122847 (2014); Jordan v. Secretary of Navy, EEOC Appeal No. 0120110907 (2012)

The only time an agency must grant telework as an accommodation is if:

1. The essential functions of employee’s job can be performed from home,

2. There is no other effective accommodation that would allow the employee to perform the job within their medical restrictions, and

3. Granting telework is not an undue hardship on the agency.

EEOC Fact Sheet: Work at Home/Telework as a Reasonable Accommodation; see also Dahlman v. CPSC, EEOC Appeal No.0120073190 (2010); Lavern B. v. HUD, EEOC Appeal No. 0720130029 (2015).

There may be times when an agency chooses to grant telework even though there might be an effective accommodation available at the worksite. For example, let’s say an employee has irritable bowel syndrome. The agency could provide the employee with a workstation close to the restroom, which would be an effective accommodation.

However, taking into account the fact that the restroom is not single-use and the fact that the employee needing to use the facilities in front of the employee’s coworkers might cause embarrassment, the agency might choose to grant the employee telework instead.

For more guidance, join Attorney at Law/FELTG Instructor Ann Boehm on May 11 for Managing Post-pandemic Reasonable Accommodation Requests and Medical Documentation, the second part of our three-part webinar series Navigating the Return to the Post-pandemic Federal Workplace.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

And Now a Word With … FLRA Chair Ernest DuBester

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By Dan Gephart, April 18, 2022

Ernest DuBester holds the Federal Labor-Management Relations statute close to his heart.

Literally.

During our recent conversation, the FLRA chairman pulled a mini printed version of the statute from the left breast pocket of his shirt several times to emphasize the points he was making. Those close to the chairman know he likes to carry that Pocket Statute with him everywhere he goes.

As Chairman DuBester’s nomination for another FLRA term remained stuck in committee, he took time to discuss the FLRA’s plans for returning to the workplace, the status of the Authority union, the legal issues that he’s most looking forward to addressing, and more.

[Editor’s note: Join FELTG for FLRA Law Week May 9-13 to get up to date on all things federal labor relations. Sessions will run from 12-4 pm each day. Early bird pricing ends this Friday, so register now.]

DG: What has been the biggest challenge the agency has faced during the pandemic? And what did you learn from it?

ED: The pandemic has had a huge effect on our society. And it has certainly had a big effect on the FLRA. From Day One, and it continues today, my focus has been on employee well-being, employee health and safety, but also combined with what I call the appropriate and requisite ability to run an agency that fulfills its mission. That has been the hard thing.

There were a lot of things that were not only my preference to do in person, but that I think are actually done better in person. (When the pandemic hit), they had to be done virtually or remotely. Converting to mostly an all-virtual workplace is huge.

For example: One of our responsibilities, which stopped for over three years during the Trump Administration, is that we handle unfair labor practice cases, and we have hearings. Those are run by our Regional Offices and Office of General Counsel personnel. We haven’t been able to do those in person.

Similarly, and related to that, our administrative law judges have the responsibility then with respect to unfair labor practices. They hold ULP hearings at a later stage. Those decisions may come up to me and my colleagues, the other members, on what I’ll call appeal.

The administrative law judges have had to move to virtual hearings. And that’s a big thing, not only practically and logistically. It really has a huge bearing on the way you relate, interact, and share information.

I’m all about effective communication. To me, it’s the secret of everything. It’s certainly the secret to effective management-labor relations, which are based on relationships and human behavior, in particular. There’s no doubt, and I’ll say this emphatically: The ability to communicate and solve problems and hopefully to address and resolve disputes more effectively requires effective communication. And you can’t do it as well on a computer, or telephone or email.

Our employees are dedicated employees. They have gotten, in some respects, accustomed to working remotely, and to some extent enjoy the benefits. We’re all human. We don’t like to commute to work. So, we’re going to have to practically work through how best to harmonize those kind of work/life issues for individuals, and that’s not just employees, but it’s managers and supervisors, too. And it’s leaders, too. What I call the practical dimensions of the job is about labor-management relations, and it requires human interaction to be most effective.

DG: What is the status of the union of Authority employees?

ED: When I was made Chair over a year ago, the first thing I did on Day One was to restore recognition of our in-house union. As you may know, the FLRA had recognized that union since the first year of its existence in 1979, through Republican and Democratic administrations alike, until the end of 2018.

We went through nearly 40 years having recognized the union, and then that was ended in 2018.

Just for context. That recognition initially back in 1979 had been done after seeking an opinion from the Department of Justice whether we could do that. Under our own statute, we’re one of the agencies exempt from coverage. We’re not covered by our own law, for practical reasons. But then the question is: Could we voluntarily recognize a union in-house? The answer came back in a very thoughtful and thorough memo from Justice that said, yes you could, with a couple caveats. For example, our employees couldn’t be represented by a union that had business before us.

Last year, I restored recognition. It was very important to our employees. Morale had already plummeted. From Day One, we’ve been in negotiation with our union, and discussing with them several aspects that involve the pandemic, wrapping up three different agreements:

1.    Telework.

2.    Remote work.

3.    And then have begun to consider the future and a re-entry plan as directed by OMB and OPM. We’ve been negotiating a re-entry plan which we’re about to finalize.

[Editor’s note: The FLRA’s telework Memorandum of Understanding allows employees in appropriate circumstances to work from somewhere other than their assigned FLRA office for up to 8 days per pay period. The remote work MOU allows employees, in appropriate circumstances, to work from somewhere other than their assigned FLRA office more than 8 days per pay period, and generally does not require them to come into their assigned FLRA office on a regular basis. This agreement is moving forward as a 24-month pilot program. The parties will evaluate the pilot and decide whether to continue it past 24 months.]

So that restoration of the union has led to the negotiation of these three agreements that are offshoots of the pandemic, giving our employees a voice. I anticipate that we’ll be returning to the office in a different way than existed the last two years, and in different ways than existed before the pandemic hit.

DG: When do you expect to return employees to the physical office?

ED: We agreed we wanted to see 14 straight days with a reduction in transmission rates recorded. We still have a couple regional offices located in areas where we haven’t nailed that down yet. Then we have a 30-day notice provision before we transition back. I guess somewhere around mid-May, we’ll be getting ready to transition.

DG: What are the most important legal areas you will look to reexamine if given the opportunity?

ED: If you followed us closely, we got into areas over my objections that were based on what are characterized as requests for policy guidance. It wasn’t a specific case or controversy between parties, it was just some entity requesting policy guidance in certain areas. Those entitles were varied, some were parties before us, but eventually some of them weren’t.

In my view, it’s somewhat analogous to rulemaking. It’s my view that those kinds of serious matters should be addressed and resolved by cases. But many were over my dissent, and I dissented substantively as well.

I think it’s important to say this to set the table. And I think it’s historically factual.

Three Federal agencies oversee three collective bargaining laws – the NLRB, the National Mediation Board, and we have the FLRA, which, as you know, has jurisdiction over approximately 2 million Federal employees. I’ve worked at all three agencies. Throughout its history, at the NLRB, you’ve seen a lot more political swings in their case law and decisions. It does change. Sometimes, it changes by administration. Certainly, long-standing precedents are overturned at certain points in time.

That hadn’t been true of the FLRA in the same way. With a couple of exceptions – and only a couple — we’d had a lot of long-standing precedents that have been in existence for decades. Then, in the last 5 years, while I’ve been in the minority, there has been a unique noteworthy change in our history. I don’t think you can deny, there’s been a very purposeful objective of overturning long-standing precedents that had continued through Republican and Democratic Administrations. To me, with all due respect because people are entitled to their opinion here, they also reflect an undermining of what I consider to be some of the key policy underpinnings that are reflected in this statute.

When this statute was enacted, it was discussed in the context of what is unique to the Federal sector, not just the public sector. Everybody says (the statute) was modeled on the National Labor Relations Act. It was, in some respects, but that is really misleading. It’s a much different statute in many ways, based on policy considerations in the Federal sector, and those have been violated in my opinion.

Here’s one good example: It’s important to every workplace in every sector, but there’s a unique importance of grievance arbitration in federal labor management relations. Why is that so? Because of a lot of other decisions that were made.

Number one is (Federal unions) don’t have the right to economic weapons. They don’t have the right to strike under our law. So, you need mechanisms to resolve disputes.

Grievance arbitration was made paramount. Every agreement must have a grievance arbitration provision. The definition of grievance is very broad in here. What I would say: The language of our statute makes clear and other decisions also made clear that arbitrators doing Federal sector work should be accorded the same deference we accord them when doing private sector work.

One of the FLRA’s most important responsibilities is we sit as the surrogate for the Federal courts in handling appeals or exceptions for grievance arbitration awards in the federal sector.

Arbitrators should be given that deference. Now I will say that that’s my very strong view, but like on everything, don’t take my word for it. I will tell you that the DC Circuit has come up, in a number of decisions, and overturned my colleagues, tracking my dissent.

In 2020, the DC Circuit overturned my colleagues and said, as I said to you today and throughout my professional life, the FLRA is required to apply the deferential standard of review used by the Federal courts in the private sector. That principle needs to be enshrined and re-established. It’s so central to the day-to-day workings of labor management relations at any agency over which we have jurisdiction.

If you look at the decisions that have discarded longstanding precedent. and they fall into different areas, the common theme there is that they’re restricting access to the rights provided here, or they’re limiting the scope of collective bargaining, one of the purposes of this law.

To me, it doesn’t just reflect what I would call a different view on policy, it reflects a disagreement with the law. One of the unique attributes of this statute and a striking contrast to the law in the private sector under NLRB is the narrow scope of bargaining. It’s already very narrow. You don’t bargain over anything under which there is a Federal law, like wages, salaries, fringe benefits. They are essential to most bargaining anywhere else.

And (the statute) is pro-management. To try to whittle it away, little by little, to me, is basically saying we don’t believe in the statute, so that’s my concern.

Beyond what I mentioned, it’s important to focus and highlight the underlying policy around grievance arbitration. So many areas need to be addressed. Just look where precedent has been overturned … Just speaking generally, and without prejudging how I would rule in any particular case, I think the precedent was probably for the most part well-founded and needs to be restored.

[email protected]

MSPB’s FY 2021 Report – the Last of its Kind for a Long Time

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By Deborah Hopkins, March 28, 2022

Last month, the MSPB issued its annual report [PDF] from FY 2021, and just like the reports from the several years preceding, there were ZERO decisions on Petitions for Review, because there were ZERO members on the MSPB.

Well, that’s all changed because as of March 4, 2022, we now have a quorum. That’s right, after 1,882 days without a quorum, the Senate confirmed Vice Chair and Acting Chair Raymond Limon, and Member Tristan Leavitt. As a result, the backlog of 3,600-plus cases is starting to move. That means the FY 2022 report will contain something other than zeroes at the Board level for the first time since FY 2017.

In the years without a quorum, the Board was still operating on the lower levels, and I’ve highlighted some statistics in the 2021 report you might also find interesting:

  • 4,649: The number of appeals received (of those, 1,881 were adverse actions; 173 were performance-based actions; and 453 were Individual Right of Action).
  • 3,082: The number of appeals dismissed
  • 1,567: The number of appeals not dismissed
  • 724: The number of appeals settled (a 46% settlement rate)
  • 843: The number of appeals adjudicated on the merits

Of those appeals that were adjudicated on the merits:

  • AJs upheld agency actions 80 percent of the time
  • AJs overturned agency actions, or ordered corrective action, 16 percent of the time
  • AJs mitigated agency actions 2 percent of the time

Allow us to do the important math for you: Out of 4,649 appeals filed, only 157 of those actions were overturned or mitigated, which equals 3.38 percent. So, agency actions stood as taken in 96.62 percent of cases last year.

The agencies that had the top 5 highest number of appeals, unsurprising given the size of these agencies:

  • Department of Veterans Affairs
  • Department of the Army
  • United States Postal Service
  • Department of the Navy
  • Department of Homeland Security

Because of the continued lack of quorum, MSPB was unable to issue any formal reports to the President and Congress in FY 2021. But according to the report, “MSPB published three editions of its [Issues of Merit] newsletter, which included articles on various topics such as pay equity, recruitment and hiring, telework, online training, disability retirement, performance management, and supportive work environments.” MSPB also published five research briefs which are linked in the report.

With all that’s happening, and more about to happen, it’s a perfect time to register for the webinar Getting Back on Board: An MSPB Case Law Update, planned for April 20, where we’ll be covering the first cases coming out of the brand new MSPB. Finally! [email protected]

And Now a Word With … New MSPB Vice Chair Raymond Limon

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By Dan Gephart, March 21, 2022

It’s just four words, but we are so thankful that we won’t have to include them in any more presentations or articles about the Merit Systems Protection Board. I’m talking about, of course, “lack of a quorum.”

On March 1, the Senate confirmed Raymond Limon and Tristan Leavitt as members of the MSPB. And then on March 4, they were sworn in, officially ending the five-year-and-two-month stretch in which the Board did not have enough members to vote on any Petitions for Review (PFRs), among other stalled functions.

Member Leavitt had been serving as MSPB’s General Counsel since late 2018. In the absence of any Senate-confirmed Board members, he served as the agency’s acting chief executive and administrative officer starting in March 2019.

Vice Chair (and current Acting Chair) Limon is new to the Board, but he comes with a resume that seems particularly fitting for this position. He had an extensive career as a human resources professional, including stints as Deputy Assistant Secretary for Human Capital and Diversity and Chief Human Capital Officer at the Department of the Interior, as well as similar roles for the State Department and Corporation for National and Community Service. He also served as an attorney in the Office of Personnel Management’s Office of General Counsel.

Vice Chair Limon very graciously took some time to answer our questions last week and offered a glimpse into the Board’s approach to that huge backlog of PFRs.

DG: Tell us how you think your experience, particularly in HR at DOI, will help you as you transition to this new position?

RL: Thank you for this opportunity to share my excitement and acknowledge the deep appreciation I have in helping to lead this amazing agency. I am honored for this privilege and plan to contribute the best way I can to the Board’s mission. With that said, I do feel the numerous HR experiences gained over those years have prepared me for this position.

I have over 25 years as a federal career civil servant and 22 years as an executive promoting and defending the merit system principles through my management, policy and legal experiences at various title 5 and non-title 5 Executive branch agencies, while serving in small and large agencies. After practicing law in the private sector, I joined OPM’s Office of General Counsel where I litigated before the MSPB, EEOC, and FLRA and coordinated with OSC and DOJ, along with dozens of federal agency partners.

After enjoying success as a litigator, I accepted an executive position to lead OPM’s Office of Administrative Law Judges (OALJ). While managing OALJ, I oversaw the ALJ personnel system that involved the application, examination, selection, compensation, classification, movement, and oversight for all ALJ positions serving in over 30 agencies. After OPM went through a significant realignment in 2003 and the functions of OALJ were divided among three new OPM divisions, I became OPM’s Director of Compliance and led its merit system compliance reviews for all federal agencies across the nation.

In 2005 and based in part on my earlier experiences as a U.S. Peace Corps Volunteer serving in Honduras, I joined the Corporation for National and Community Service (CNCS). CNCS manages domestic national service portfolio that included AmeriCorps, VISTA, Senior Corps, and the National Civilian Community Corps (NCCC).

In this position, I became the first-ever Chief Human Capital Officer (CHCO) for CNCS and developed and implemented an HR system outside of Title V. While in that position, I was selected by the 100-plus small agency council members to lead the Small Agency HR Council, and in 2006, I represented all small agencies on the CHCO Council. In 2012, I left CNCS to join the State Department and continued serving on the CHCO Council as the Director, Office of the Civil Service HR Management. I had the privilege to work among dedicated civil and foreign service professionals and I was the executive sponsor that rolled out a first-ever developmental program that allowed civil and foreign service employees to go on short-term rotations between their respective personnel systems to close skills gaps, enhance mission knowledge and meet work surge demands. In 2015, I was offered the Deputy, CHCO position at the U.S. Department of the Interior and by 2017, I became the Deputy Assistant Secretary for Human Capital and Diversity and CHCO. Interior has an amazing workforce and operates in over 2,400 locations and almost every occupation covered under the federal inventory of positions (approximately 350) are also found within Interior.

In all these roles, I maintained a constant and valuable connection to the CHCO Council and have had the privilege to work on many issues facing the federal workforce over these years. Over these many years, I participated in a wide variety of partnership functions with the Board, whether attending training or conference panels with its representatives, participating in its surveys, or providing feedback on future studies and evaluations. I bring a wide variety of strategic, tactical, legal, and policy-setting experiences and executive leadership perspectives that will support me well as the Board’s Vice Chair and have developed a deep appreciation for its mission and the professionals that serve there.

DG: You are walking into an an unprecedented situation with more than 3,600 Petitions for Review waiting for you. Do you have a process to address those PFRs? What kind of cases are you prioritizing? Are you considering short-form opinions?

RL: The good news is that of those approximately 3,600 cases, career staff have drafted recommended decisions for about 3,400 of them. This includes updating recommended decisions, when appropriate, in cases in which statutes, regulations, and court precedent may have changed during the lack of quorum.

That said, there are various ways we as a Board could choose to approach the backlog. For example, we could implement a “first-in, first-out” approach, or we could prioritize certain categories of cases, such as precedential decisions, cases involving back pay, whistleblower appeals, or more straightforward cases such as settlements and withdrawals. We’re very cognizant that there’s no right answer here given what we’re facing with the backlog and the fact that the parties have been waiting a long time for a decision from the Board on their PFRs. However, during the lack of quorum, our legal offices collaborated to try and determine which cases were priorities from all perspectives, and so we’re initially taking a hybrid approach to incorporate various types of cases, and we’re prepared to adjust our approach as we move forward.

Similar to the most recent Board quorum, we are planning to issue both precedential and nonprecedential decisions, but the latter will be more tailored to a length that’s appropriate for the issues presented in each PFR, meaning that some nonprecedential decisions will be a few paragraphs while others could be several pages. Additionally, during the lack of quorum period, MSPB staff deployed enhancements to our current case processing systems to provide more flexible and efficient options for the Board as it tackles the backlog.

DG: Have you had an opportunity to address MSPB employees? What is your message to them?

RL: Yes, Member Tristan Leavitt and I had the opportunity to virtually address the entire agency during our swearing in. We both conveyed appreciation to the workforce and acknowledged the challenges and opportunities facing the Board today. I came to this position with high regard and respect for what the Board is tasked with and how it serves our nation by protecting our federal workforce. After my first week of briefings and personally meeting so many of the Board’s professionals, that respect has deepened immensely.

DG: Everyone focuses on the PFR backlog. What other functions are particularly challenging now due to the fact the Board lacked a quorum for so long?

RL: During the lack of a quorum, MSPB could not issue our traditional, fulsome studies with policy recommendations for the President and Congress. [Editor’s note: We discussed those reports with Jim Read, then-director of the agency’s Policy and Evaluation Office back in 2019.] We are looking to move out on that. Similarly, the quorum must also approve a new research agenda that has been prepared.

Notwithstanding the lack of a quorum, administrative judges and support staff continued the mission of the agency and acted with distinction during the pandemic to adjudicate thousands of cases. Similarly, the Offices of the Clerk, Appeals Counsel, and General Counsel made significant contributions to address the increasing backlog and expertly prepared the incoming Board members to take on this challenge. Over the months to come, we are looking to leverage technology to improve the user experience and improve our case management functions and continue to receive input from our stakeholders.

Our legal offices have also been working on updates to our regulations to account for changes in statute and case law, as well as our shift toward more electronic case processing. Updates to the regulations could not be issued while the Board lacked a quorum, but they will be among the new Board’s priorities. The appropriate notices will be posted to the Federal Register in the coming months.

[Editor’s note: With a new quorum now in place, it’s an important time to sharpen your MSPB skills and knowledge. Join us for MSPB Law Week Virtual Training March 28- April 1 or the Getting Back on Board: An MSPB Case Law Update webinar on April 20.]

[email protected]

 

MSPB Quorum Returns After 1,880 Days

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By Deborah J. Hopkins, March 2, 2022

Late yesterday, while the world was focused on the Ukraine crisis and the country discussed the State of the Union address, the Senate confirmed two individuals to the U.S. Merit Systems Protection Board (the Board) by voice vote: Raymond L. Limon, and Tristan L. Leavitt.

While there was not a vote on the third and final nominee, Cathy Harris, two out of three members still makes a quorum, which means we’ll soon see decisions on the 3,600+ Petitions for Review awaiting action. The Board will have its work cut out for it, as decisions will need to be issued on topics including:

  • Whistleblower reprisal allegations
  • New performance requirements in the wake of Santos v. NASA
  • Challenges to Administrative Judge authority
  • Interpretation of the VA Accountability And Whistleblower Protection Act
  • Pendulum shifts in Executive Orders and OPM regulations

We’ve long said that justice delayed is justice denied, and this Senate action, while long overdue, is an important step in the right direction for all the people impacted by the 5+ year lack of quorum at the MSPB. Stay tuned to FELTG for all the latest information, and join us at the end of the month for MSPB Law Week, where we’ll unpack all the latest information from the new Board. [email protected]

And Now a Word With … Mxolisi Siwatu About EEOC’s Report on Older Workers

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By Dan Gephart, February 22, 2022

What do you want first — the good news or the bad news? The Equal Employment Opportunity Commission’s recent report on older Federal workers offered a little bit of both. Let’s start with the good news. General job satisfaction, perceptions of workplace inclusion and fairness, as well as having your agency EEO Director report directly to the agency head, all lead to a decreased likelihood of having an age discrimination complaint, according to the report conducted by the EEOC’s Office of Federal Operations. Basically, the data is providing a clear path to limiting discrimination complaints at your agency. And following this path will improve your FEVS scores and make your workplace more desirable to current and future employees. Kind of a win-win-win-win.

And there’s more good news. Employees 40 years or older make up 72 percent of the Federal workforce. That’s a whopping 18 percent higher representation than 40-and-up employees in the overall civilian labor force (CLF). Also, the Federal cohort is more diverse than its private sector counterpart.

Now the bad news. The report found a a significant pay disparity between older men and older women in the Federal workforce. The EEOC also found a persistent pay gap between white and Asian Federal employees as compared to other groups of older Federal employees.

Mxolisi Siwatu, PhD, an EEOC Office of Federal Operations (OFO) social scientist research analyst, took time to answer our questions about the report.

DG: Why do you think the 40 and older cohort is better represented in the Federal workplace than the private sector? What do Federal employers do right?

MS: We argued that it is possible that the difference between the private sector and the public sector in EEO performance may be due to greater oversight. The Office of Federal Operations gained increased oversight responsibilities with the introduction of Management Directives 110 (2003), which provides guidance to federal agencies for how to process EEO complaints; and Management Directive 715 (2003), which provides guidance to agencies for how to maintain an EEO program. Also, OFO provides ongoing technical assistance to Federal agencies in support of these directives, which may also contribute. However, it must be noted that this is speculation on the part of the authors and no causal analyses were conducted in the current research.

DG: Men account for 57 percent of the Federal workforce 40 or older, while it is only 45 percent in the private sector. Is there an explanation for that wide gap, and what do you suggest that agencies do differently to narrow that gap?

MS: We did not speculate on why this gap was found. However, OFO conducts technical assistance visits regularly with each Federal agency. During these visits, their participation data are assessed in relation to the CLF. Recommendations are provided to Federal agencies to address any discrepancies observed and progress is monitored thereafter. So, if we note gender disparities, it is addressed with the specific agency.

DG: The report identifies the perception of fairness as a predictor of age discrimination complaints and shares six strategies to achieving that fairness based on research by Jennifer Lee and Ann Smith. What actions can EEO specialists and supervisors take to immediately improve the perception of fairness?

MS: Lee and Smith’s article was written primarily for private sector companies. Many of the strategies identified by Lee and Smith are already practiced in the Federal sector due to guidance derived from MD-110 and MD-715. To drill down to the office or supervisory level, agencies may engage in demonstrated commitment to EEO in a way that is visible and meaningful to their workforces as a way of improving perceptions of fairness.

[Editor’s note: The six strategies identified in the Lee and Smith research are: authorizing workers’ complaints by allowing third parties to advocate on the part of disadvantaged populations and employees; creating enhanced penalties for engaging in discrimination; mandating that employers disclose information to workers about their rights; having strong anti-retaliation laws; expanding liability by placing the burden of proof on the employer; making reporting of employer discrimination data to the public and governing bodies mandatory.]

OFO recommends activities that promote EEO awareness, anti-harassment education for staff and managers, timely complaint processing and resolutions, and having a reporting structure in which the EEO program director reports directly to the agency head. In addition, ongoing monitoring of diversity and inclusion at the agency with respect to hires, promotions, and separations is required. Ongoing commitment and proactive prevention efforts may help promote a climate of EEO among the workforce that encourages lawful treatment, but also confidence in reporting unlawful treatment when appropriate.

[Editor’s note: FELTG offers virtual training events that can help improve your agency’s efforts including:

DG: One of the main findings of the report is the importance of having EEO high up in the reporting structure, most effectively having the EEO Director report directly to the agency head. For those agencies where that’s not the current situation nor likely to be, what advice can you provide for EEO professionals and supervisors?

MS: OFO has been working to encourage all agencies to reorganize their EEO office so that the EEO Director reports directly to the agency head, as required by MD-110. As of FY2019, currently 61 percent of agencies have an EEO Director that reports directly to the agency head. OFO continues the goal of achieving 100 percent compliance among all agencies with this requirement as it remains one of the key priorities during technical assistance visits and audits.

Siwatu did not specifically say whether agencies are making progress on the hiring of a Chief Diversity Officer, as suggested in Executive Order 14035. However, he did say that the EEOC has been an “active participant in the implementation” of the EO and the goal is to have the CDO and EEO Director positions “complement one another to meet the Administration’s broad equity goals.” [email protected]

3 Things to Know About the Federal Vaccine Requirement’s Injunction

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By Deborah Hopkins, February 7, 2022

On January 21, a Federal district judge in Texas issued an injunction [PDF] on the vaccine requirement for Federal employees, established last September by Executive Order 14043. The Biden Administration has appealed the injunction and has requested a stay while the appeal makes its way through the system. While we await the outcome, there are a few nuances of which your agency should be aware.

1. Your agency should still collect information about employee and future employee vaccination status.

Though the vaccine requirement is on hold, the information on vaccination status is important to agencies as they determine safety protocols for the physical workplace. Agencies are not prohibited from using information on vaccination status to set guidelines for masking, distancing, testing, travel, and quarantine requirements.

2. Your agency does not need to rescind discipline that has already been issued and completed for failure to comply with the vaccine requirement.

While most agencies have not yet implemented discipline for employees who were not vaccinated by the November deadline, some have. The Safer Federal Workforce Taskforce guidance is clear: During the pendency of the appeal on the injunction, the discipline should remain as issued. That said, the discipline should not be relied upon as an aggravating factor in any new disciplinary actions.

3. If your agency predicated an offer of employment on a vaccine requirement, it should amend the offer and remove the vaccine requirement.

However, because this injunction is not the final disposition on the issues, the Task Force suggests the following language be included in the amended offer:

“To ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified, or vacated, depending on the course of ongoing litigation, the Federal Government will take no action to implement or enforce the COVID-19 vaccination requirement pursuant to Executive Order 14043 on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. Federal agencies may request information regarding the vaccination status of selected applicants for the purposes of implementing other workplace safety protocols, such as protocols related to masking, physical distancing, testing, travel, and quarantine.”

There’s much more to discuss on this topic, including information on exemption requests, what agencies should do if they are exempt from the injunction, and whether agencies are permitted to establish independent vaccine requirements for their workforce. Join FELTG next Thursday, February 17, at 1 pm ET for the 60-minute virtual event Vaccine Mandate on Hold: What Now for Accommodation, Discipline, and Hiring? [email protected]

Federal Court Puts Vaccine Mandate on Pause: What’s Next?

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By Dan Gephart, January 24, 2022

The FELTG mailbag has been overfilled of late with questions from readers preparing to take adverse actions against employees who failed to comply with President Biden’s vaccine mandate. Today we can answer all those questions with just five words:

Put those actions on hold.

Last week, a Federal judge in Texas issued a nationwide injunction [PDF] against the requirement that Federal employees be vaccinated against COVID-19, thus enjoining the defendants from “implementing or enforcing Executive Order 14043 until this case is resolved on the merits.”

Judge Jeffrey Brown of the Southern District of Texas wrote:

“The court notes at the outset that this case is not about whether folks should get vaccinated against COVID-19 — the court believes they should. It is not even about the federal government’s power, exercised properly, to mandate vaccination of its employees. It is instead about whether the President can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment. That, under the current state of the law as just recently expressed by the Supreme Court, is a bridge too far.”

The Supreme Court struck down Biden’s similar mandate for private sector companies with more than 100 employees. The U.S. Postal Service was part of that mandate. It’s highly likely that this case – Feds for Medical Freedom v. Joseph R. Biden – will make its way to the Supreme Court, as well. Indeed, the Biden Administration has already appealed the ruling to the Fifth Circuit.

The decision came as agencies were preparing to move forward with adverse actions against Feds who, after counseling and education, still refused or failed to get vaccinated and did not request a legal exemption. The judge referred to this looming discipline in his decision as the “imminent harm” that required the injunction.

Despite this setback for the President, the vaccine mandate has already been considered a success by many. In a press briefing soon after news of the decision broke, White House Press Secretary Jen Psaki said that 98 percent of Federal workers are already vaccinated.

However, the decision leaves many of you hanging as you continue to deal with employees who outright refuse vaccination, as well as those who have requested exemptions to the mandate.

If you were in the middle of the reasonable accommodation process on mandate exceptions, you should, obviously, as we mentioned earlier, pause the process. However, make sure that you document that pause. If a higher court reinstates the mandate, it could lead to challenges on processing time, and you’ll need that documented legitimate reason for the delay.

You will also need to re-think your plans for returning employees en masse to the physical workplace to account for the return of unvaccinated employees while ensuring the safety of employees and customers.

While the Office of Personnel Management will not take action to implement or enforce the vaccine requirement, it announced that the Safer Federal Workforce Task Force guidance on protocols related to masking, distancing, travel, testing, and quarantine remains in effect. In addition, the Task Force released a four page Q & A with answers including what to do if agencies have already disciplined employees who failed to meet the vaccine mandate.

Keep an eye on FELTG’s website for updated guidance and news and join us on February 8 from 1 – 4:30 pm ET for Managing COVID-related EEO Challenges in the Federal Workplace. [email protected]

Takeaways from OPM’s Proposed Regs on Accountability and Discrimination

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By Deborah Hopkins, January 18, 2022

Well, FELTG Nation, the changes keep coming. Two weeks ago, OPM issued proposed new rules on 5 CFR Parts 315, 432 and 752, as a result of President Biden’s Executive Order 14003, and also proposed regulations for 5 CFR part 724, the Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020.

These are proposed rules and cannot be finalized until OPM considers public comments. You can comment until the first week of February. While you ponder whether you’d like to submit comments for OPM’s consideration, we’ve pulled a few notable pieces from each proposed rule, and have some thoughts of our own.

5 CFR Parts 315, 432 and 752

Performance

If you read the proposed rule, you’ll notice that OPM has a disagreement with the Federal Circuit about the Santos v. NASA case from March 2021. The Federal Circuit ruled that agencies must justify unacceptable performance before placing an employee on a PIP. OPM disagrees that the statute issues this requirement and relies on its own interpretation:

[A]n agency may not take a performance-based adverse action against an employee whom the agency determined was performing unacceptably unless the agency first provides the employee with notice and an opportunity to improve, and the employee continues to perform unacceptably. The determination to be reviewed on appeal to the Board and its reviewing courts is the final determination of unacceptable performance following the PIP, not any interim determination leading to the PIP.

It will be interesting to see what the Federal Circuit thinks about this.

Another interesting item on performance indicates OPM thinks an agency may need (or at least want) to prove they engaged in performance counseling with an employee prior to the initiation of a PIP:

Agencies should also remain mindful that third parties (for example, arbitrators and judges) place a strong emphasis on a supervisor’s effort to assist the employee in improving his or her performance. Evidence that the supervisor engaged an employee in discussion, counseling, training, or the like prior to the opportunity period may assist the agency in developing a stronger case before a third party that the employee was given a reasonable opportunity to demonstrate acceptable performance before a performance-based action is taken. [bold mine]

This has never been a legal requirement. What’s unclear to us at FELTG is if OPM is setting this as a requirement, suggesting it is a good idea, or perhaps supposing this will somehow meet the Santos requirement in a different way.

Misconduct

President Trump’s 2018 Executive Order 13839 included guidance on penalty determination for agencies, and OPM’s regs which became effective in November 2020, adopted much of that language. In the newly proposed regulations, language about penalty determination and comparator employees will be removed completely. These principles are still in MSPB caselaw but will not be in the updated regulations. OPM seems to want to leave these decisions up to individual agencies.

General Observations

  • The term “business day” will no longer exist in OPM regulations, as that was derived directly from Executive Order 13839. As a result, the timeline for decisions on proposed disciplinary actions is not a hard deadline. It is being left up to agencies. OPM still encourages agencies to act promptly.
  • Clean record settlements are back. The regulation prohibiting agencies from removing discipline from an employee’s OPF is being removed. OPM’s justification for this is, among other things, “the prohibition of clean record agreements hampers agencies’ ability to resolve informal and formal complaints at an early stage and with minimal costs to the agency.”
  • Agencies will no longer be required to provide mandatory notification to supervisors at 30 months and one month before the end of an employee’s probationary period. OPM pointed out that agencies are still encouraged “to notify supervisors that an employee’s probationary period is ending, [but] OPM believes the frequency and timing of notifications should be left up to the discretion of each agency.”
  • The regs are FINALLY being updated to include the dual status technicians in the National Guard who gained coverage under the 2018 NDAA.
  • Agencies no longer need to notify OPM if they extend an employee’s notice period beyond 30 days.

5 CFR part 724

The Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020 went into effect Jan. 1, 2021. The new law modifies the No FEAR Act and places requirements on agencies related to findings of discrimination.

According to OPM, the proposed regulations will require an agency to:

  • Provide notice, in an accessible format, of a finding of intentionally committed discriminatory (including retaliatory) acts on the public internet website (linked directly from the home page) of the agency after all appeals have been exhausted.
  • Submit the annual report in an accessible, electronic format prescribed by the Director of OPM.
  • Submit a disciplinary action report, in an accessible, electronic format, to the Equal Employment Opportunity Commission (EEOC).
  • Establish, or leverage, a system to track each complaint of discrimination; and
  • Provide a notation of any adverse action taken under section 7512 of title 5, United States Code, for a covered act of discrimination (including retaliation) in the personnel record of an agency employee found to have intentionally committed discriminatory (including retaliatory) acts, after all appeals are exhausted.
  • Update No FEAR Act training to comply with the new provisions of the Statute.
  • Train new employees within 90 calendar days of appointment, including employees who transfer from one Federal agency to another.
  • Train all existing employees on a training cycle of no longer than every two years.

We can help you with those training requirements. You know where to find us! [email protected]