How is Kirkpatrick Act Discipline Different from Traditional Discipline?

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By Deborah Hopkins, June 7, 2021

Last week, the MSPB released a research brief Agency Leader Responsibilities Related to Prohibited Personnel Practices. Since the MSPB still doesn’t have a quorum (1,613 days and over 3,400 Petitions For Review – and counting), publishing research briefs is one function the Board is still able to complete.

This brief looks at specifics in the Dr. Chris Kirkpatrick Whistleblower Protection Act (Kirkpatrick Act), 5 U.S.C. § 7515, which was passed unanimously by the Senate in 2017. The Kirkpatrick Act was named after a VA doctor who reported patient abuse and issues with patient medications (opioids) at the VA Medical Center where he was newly employed. Dr. Kirkpatrick made allegations that he was reprised against for being a whistleblower, and died by suicide shortly after he was removed from his position.

In case you’re not familiar, the Kirkpatrick Act sets out specific requirements for discipline against management officials who reprise against whistleblowers and other employees, specifically limited to the 5 U.S.C. § 2302(b) Prohibited Personnel Practices (PPP) 8, 9, and 14:

  • PPP 8 addresses retaliating or threatening to retaliate against a whistleblower.
  • PPP 9 addresses retaliating or threatening to retaliate against a person who exercises his/her/their right to participate in an appeal, complaint, or grievance (including as a witness), and retaliating or threatening to retaliate against an employee who refuses to obey an order that would require an individual to violate a law, rule, or regulation.
  • PPP 14 involves accessing the medical record of an employee or applicant as part of the commission of any other PPP.

If there is a finding of what MSPB in its brief refers to as a “Kirkpatrick PPP,” then specific requirements must be met in proposing discipline. We’ll discuss those below.

But first, according to the report, while “[t]he Kirkpatrick Act does not state what constitutes a determination that a Kirkpatrick PPP was committed or how to determine who committed the PPP in question,” the finding of a Kirkpatrick PPP can only be made by:

  • The head of the agency employing the supervisor;
  • An administrative law judge;
  • The MSPB;
  • The U.S. Office of Special Counsel (OSC);
  • A judge of the United States;
  • The Inspector General (IG) of the agency.

This seems to exclude the findings of a standard misconduct investigation unless, of course, the agency head reads the ROI and decides reprisal has occurred. Once the reprisal finding is made, the Kirkpatrick Act details the following process:

The head of the agency shall:

  1. Propose a suspension of at least three days (for a first offense), or propose removal (for a second offense by the same supervisor).
  2. Provide the employee 14 days to respond to the proposal, and allow the employee to be represented and to review the material relied upon; and
  3. Exercise judgment when considering the employee’s response and deciding to implement the proposed action, with the decision due by the end of the 15th business day (5 CFR § 752.103; this timeline may be amended in the future as a result of Executive Order 14003.)

There’s another interesting caveat to the Kirkpatrick Act. It only applies to actions taken against supervisors, as defined by 5 U.S.C. § 7103(a). If you have a few minutes to look it over, the brief can be found here. [PDF] It includes a nice side-by-side chart comparing Traditional Discipline with Kirkpatrick Discipline. The brief also details various training on PPPs that agencies must require (including supervisor training on Kirkpatrick discipline), so please let us know if you’d like us to help you out there. After all, it’s what we do. [email protected].

Three Takeaways from the 2020 FEVS

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By Deborah Hopkins, May 24, 2021

The 2020 FEVS was released a few days ago. Thanks to COVID-19, it looks somewhat different than past FEVS. But, as always, it is full of interesting and helpful information about how employees view their agencies, their supervisors, their coworkers, and more. Below are three key takeaways.

1. Agencies still have a long way to go on performance accountability.

In the 2020 FEVS, one of the worst scores out of all the topics covered came as a result of this item: In my work unit, steps are taken to deal with a poor performer who cannot or will not improve. (Q. 10). Only 42 percent of employees agreed with this statement, which means 58 percent of employees think that supervisors don’t do enough to hold unacceptable performers accountable. Not great.

While this number is trending better than it has in recent years (it was 36 percent in 2019 and 28 percent in 2018), we can all agree that 42 percent is not the target any agency aims for. That’s a failing grade no matter how you look at it.

FELTG has been working with a few agencies on a targeted approach to increase performance accountability through a structured set of training on topics, including writing effective performance standards, providing feedback that makes a difference, and holding employees accountable. These agencies have seen their individual FEVS scores on this item increase significantly, which tells us that the good employees really appreciate when supervisors focus time and effort on employee performance matters.

2. The grade on diversity hiring and representation is a solid C+.

In response to this item: My supervisor is committed to a workforce representative of all segments of society (Q. 20), 79% of employees agreed.

With President Biden’s numerous Executive Orders highlighting the government’s role in promoting diversity, especially among traditionally underserved populations, we can anticipate that agencies will work on bringing this number up in 2021. In many agencies, leadership is especially focused on nondiscriminatory hiring, reasonable accommodation for employees with disabilities, raising awareness about LGBTQ issues, and training on types of microaggressions and bias that often lead to hostile work environment allegations.

3. COVID-19 definitely impacted agency performance, but not as much as you might think.

One of the new sections in the FEVS dealt with the impacts of COVID-19 on agencies’ ability to meet customer needs and focus on mission results while the world was turned upside down from the pandemic. The graphic below shows that while there have been some struggles, Federal employees have found ways to contribute to agency mission and customer service despite unprecedented working conditions, whether that was transitioning to work 100% from home, spending 12 hour shifts in PPE, working around the clock to develop tests, treatments, or vaccines, and much more.

If you haven’t yet read the FEVS, you can find it on OPM’s website here [PDF]. It’s worth a look, and when you’re ready to talk to FELTG about how we can help you improve your agency’s scores (because after all, higher scores mean your employees are happier, and if your employees are happier they are more productive), we’ll be here. [email protected]

 

Two Words for MSPB AJs Mitigating Removals to Demotions: Please Stop

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By William Wiley, May 3, 2021

President Biden recently nominated Cathy Harris as Chair of the Merit Systems Protection Board, and hopefully soon he will nominate two other individuals who will provide us with a full Board. And you can bet that on behalf of The Nation, good old FELTG will have some recommendations for the new leadership to consider.

One of them is a cure for a complaint we’ve long expressed in this newsletter over the years, and which we will re-surface every chance we get. We were reminded of the problem in a court decision earlier this year, Lowe v. Navy, Fed. Cir. No. 2020-1564 (Jan. 11, 2021). That non-precedential decision contained nothing legally spectacular within itself, and resulted in the affirmation of the administrative judge’s decision in Lowe v. Navy, No. DC-0752-19-0053-I-2, 2019 MSPB LEXIS 4415 (Dec. 2, 2019). The problem that we hope the new Board leadership will correct is found in the AJ’s decision.

The Navy fired Mr. Lowe from the position of a GS-13 supervisor based on two charges. Finding one of the charges not proven, the AJ mitigated the removal to a demotion to a non-supervisory GS-12. And that’s what the new Board leadership should stop AJs from doing — mitigating removals to demotions. Here’s why:

We know nothing about the specifics of the work situation in which this appellant was employed. Theoretically, however, it could be a small organization, as would be the case in which any individual is fired from government. There is nothing in the record to show that when ordering the mitigation of the removal to a demotion, the AJ gave any consideration to the needs of the agency, its organization, and the availability of work for the appellant to perform once he is reinstated to a lower grade. It is conceivable that there actually is no GS-12 work available for the restored employee to perform in the organization from which he was removed.

To comply with the AJ’s mitigation order, the agency has to either find a vacant position elsewhere within another organization within the agency or create work that doesn’t actually need to be performed at the GS-12 level in the original organization. Perhaps there is an available GS-12 position within the agency, but at a location hundreds of miles away, thereby requiring that the employee be physically moved, perhaps against his will. Or, perhaps worst of all, assign the restored appellant to do lower-graded work while being paid at the GS-12 level, thereby violating all the rules of position classification and good government common sense.

Sure, the Navy is a big agency potentially with lots of available positions or work to be done that is not yet organized into a position. But what if the employing agency had been a much smaller one with limited work to be done? What if the appellant in this case had been located in a remote Navy facility, thereby necessitating an agency-funded PCS move to another work location to find GS-12 work? A board AJ is in no position to assess these organizational factors when ordering a demotion in lieu of a removal and should not mitigate a removal to a lower-graded position.

So, what should the new Board leadership direct AJs to do in a situation in which the judge decides, for whatever reasons, that some penalty is warranted, but the appealed removal penalty is too severe and demotion might be more reasonable? Ah, fortunately for humanity, we here at FELTG have a few options to recommend that the AJ can do:

1. Set aside the removal and restore the appellant to his old position. The agency has said, “This guy deserves to be fired because of the following reasons.” When it does not prove those reasons, then it loses. It would then be left up to the agency, upon restoration, to decide if a new penalty was warranted. If that new penalty was within the Board’s jurisdiction, the employee could file a new appeal. That would parallel what is done when a criminal prosecutor brings a charge of murder, but does not prove that the killing was premeditated or otherwise fully comports with the legal definition of murder. The jury doesn’t get to step in and rule that the individual should instead be found guilty of some separate charge that was not brought.

2. Set aside the removal and remand to the agency to reconsider the penalty in light of the AJ’s conclusions. The AJ could set a time limit for the agency to act and retain jurisdiction to review any new proposed disciplinary action to see if it is within the bounds of reasonableness. Upon finding that it is (or remanding again until it is), the judge would issue a decision that would be appealable to the Board, as is usual.

3. Set aside the removal and remand to the agency with specific options. The AJ’s initial decision could conclude with language like this, “Having found that removal exceeds the bounds of reasonableness, I hereby direct the agency to place the appellant into a non-supervisory GS-12 position within the same geographic area now employed, if one is available. If such a position is not available, then I find that the maximum penalty for the sustained charge is an X-day suspension.” That way, the agency gets to consider its organizational needs and work availability when deciding which penalty makes the most sense.

Position management decisions should not be made by Board judges. Reinstated employees should not have to be reassigned geographically to comply with an AJ’s reversal of a removal. The new Board members should develop another option for AJs to implement when they determine that the removal of a supervisor is beyond a reasonable penalty, other than demotion. [email protected]

Answering Questions on the New PIP Requirement, Post-Santos

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By Deborah Hopkins, April 27, 2021

A couple weeks ago, Bob Woods and I held a webinar on the new PIP justification requirement issued by the Federal Circuit in Santos v. NASA, No. 2019-2345, (Fed. Cir. Mar. 11, 2021), that undid more than 40 years of case precedent. In case you missed the news flash, the law now requires agencies to have substantial evidence of poor performance before they can place an employee on a PIP – and they must present that evidence as part of their case in chief before the MSPB, should there be a performance-based removal. If you haven’t yet read the article, I wrote about it last month. You’ll want to take a look at that first before you keep reading: Say Goodbye to 40 Years of Case Precedent: Agencies Must Justify PIPs.

And if you didn’t attend the webinar, we’re holding a live encore webinar May 11, where we get into all the necessary details, requirements, and takeaways. Because this is the most significant case on performance since the very early days of the Civil Service Reform Act, it’s one you can’t afford to miss.

In the meantime, I thought I’d give you a preview of the kinds of questions that Bob and I received during the webinar. Please keep in mind that 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.

Q: How long does an agency need to show the employee was performing at an unacceptable level, prior to implementing a PIP?

A: The Santos case doesn’t give any indication about a minimum time period, it requires the agency show substantial evidence of unacceptable performance. Sometimes one mistake on one day could equal unacceptable performance; other times it might take a month or two for an employee to reach a certain number of exceptions to a standard, that causes their performance to become unacceptable.

Agencies shouldn’t feel obligated to come up with an arbitrary number of days to satisfy the requirement (we’ve heard some agencies advising anywhere from 30 to 90 days or more – eek!), but instead should look at the performance standards to be sure the unacceptable performance the supervisor has seen, actually matches the written standard for unacceptable. As soon as that happens, the PIP can be justified.

Q: Can the notification of unacceptable performance be part of the PIP? Our standard PIP normally includes language like “This is to information you that your performance is unacceptable” and gives examples. Is this adequate?

A: Yes, it sounds adequate. While FELTG recommends including the justification document as an attachment, this approach you’ve detailed should also satisfy the Federal Circuit’s requirement post-Santos to document pre-PIP unacceptable performance.

Q: For the “roller coaster” employee who, for example, “passes” the initial 30-day PIP, and receives notification that they passed, if they then later dip in performance and their performance warrants removal, is it necessary for the agency to provide another notice that the performance has dipped before removal? Without an intervening notice, the only notice the employee would receive before the removal is that they passed the PIP.

A: There’s no requirement in the law to provide notice, but we recommend at the conclusion of the PIP, to issue a “Performance Warning Letter” that lets the employee know they will be removed at any time between now and X date (the end of the one-year period, with Day 1 of the PIP starting the year) if their performance becomes unacceptable on the critical element(s) from the PIP.

If the employee falls back into unacceptable performance after successfully completing the PIP within the one-year period, the only notice they receive at that point is the notice of proposed removal, which will articulate their unacceptable performance that the proposed removal is based on.

Q: What are your thoughts regarding employees who, at times, perform “other duties as assigned” and are then placed on a PIP based on unacceptable performance on those ODAA? Is it still OK to place an employee on a PIP based on the observed unacceptable performance or is it better to stick to the critical elements outlined in the performance plan?

A: A PIP may only be used for unacceptable performance related to the critical elements in the employee’s performance plan. If the ODAA relates to a critical element, the agency is free to PIP. But if it’s something unrelated to any critical element, for example a special assignment because the employee is on covid-related telework, it would be inappropriate to place an employee on a PIP. Such a situation could be handled with the Chapter 75 procedures. We have a webinar on this topic May 13, Handling Teleworker Performance and Conduct Challenges, if you need more details.

Good luck with this new requirement. Let us know how it’s going out there. [email protected]

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 … Marcus Hill

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By Dan Gephart, March 29, 2021

As the former Senior Executive Advisor for the Federal Law Enforcement Training Centers, Marcus Hill (pictured at right) knows a lot about training. When it comes to determining whether training is going to be effective, he recalls something one of his mentors Dr. Phil Callicutt once told him: “Marcus, you have to believe in the song and the singer.”

“I believe the same is true related to determining if so-called leadership training will be effective, hence ‘the song.’ I believe you have to start by assessing the credentials, credibility and reputation of the developer and the delivery of the training, hence ‘the singer.’”

FELTG Nation, we’re pleased to introduce you to our newest singer.

Marcus Hill retired earlier this year, ending a distinguished 37-year federal career that included stints with FLETC, the United States Air Force, the Department of the Navy, and the Transportation Security Administration, where he was instrumental in establishing the TSA infrastructure and screening operations at Jacksonville International and Gainesville Regional airports.

Marcus served an active-duty tour with the US Air Force, and retired from the USAF Reserves in 2007. His honors include a 2017 Presidential Rank Award for Meritorious Service, the 2014 Department of Homeland Secretary’s Under Secretary for Management Partnership Award, DON Civilian Meritorious Service Medal, and USAF Meritorious Service and Commendation Medals.

He is currently the Principal of Hill Management Consultancy LLC, a minority, veteran-owned small business. And he serves on the Senior Executives Association Board of Directors.

You’ll have the opportunity to see Marcus during FELTG’s upcoming Emerging Issues in Federal Employment Law virtual event. Marcus will co-present with FELTG President Deb Hopkins the session “When Employees Go Insubordinate: Don’t Mess With the Wrong Elements” on Tuesday, April 27 from 3:15-4:30 pm.

Recently, Marcus and I had a chance to discuss some of FELTG’s favorite topics — leadership, accountability, and labor relations.

DG: What is a key component of effective leadership that is often overlooked?

MH: Empathy; good leaders must exhibit the capacity for empathy. Effective leaders must have the ability to understand others’ thoughts and feelings from their points of view (insead of) the leader automatically overlaying hers/his. My former boss and good friend, Paul Hackenberry, emphasized this with me. He often says, “You don’t get to decide how others feel.”

DG: What lessons, advice or experiences from your Air Force career had the most impact on your federal civilian career?

MH: I credit the Air Force for developing my teaming skills and providing great opportunities to demonstrate them, in both follower and leader roles. Secondly, the Air Force provided my first significant exposure to strategic planning. It emphasized the importance and value of inculcating this process into your organizational DNA to ensure its long-term sustainability and continued relevance. These two experiences/attributes carried over into my civilian career and positioned the organizations in which I served to enjoy many successes.

DG: The pendulum has swung back to a pro-union Administration. What’s the best way for agency labor relations professionals to carve out a positive working relationship with unions? 

MH: Pro-union administrations really allow and expect labor relations professionals to actively engage and include union officials, representing bargaining units, in the planning and execution of their agencies missions. The belief is promoting and leveraging a partnering relationship will result in less labor-management turmoil, and more opportunities to achieve organizational wins through unity of efforts. The best way to carve out a positive working relationship with unions is “to seek to understand before being understood.” Create expectations to share appropriate pre-decisional information, exploit opportunities to dialogue in advance of making unilateral decisions and collaborating to achieve mutually desirable results which satisfy the mission and lion share of people that perform it.

DG: What do you suggest for supervisors and/or leaders who are having a difficult time navigating change?

MH: Actively engage change, don’t run from it. Change is consistent and here to stay. I view change as a process consisting of various phases – shock, denial, acceptance, plan, execute and overcome. The easier you can get through the first two phases, the quicker you can get to identifying and achieving the opportunities presented in the change. There are always opportunities in the change.

DG: What do you think is stopping supervisors from holding their employees accountable for performance and conduct?

MH: Two reasons. The first is supervisors not having a good understanding of the governance related to poor performance and misconduct, and their authorities within laws, regulations and policies. The second is supervisors not feeling comfortable that the institution will support them in holding employees accountable. Therefore, they take on the mindset it’s too hard and risky to pursue. That is why it is critically important to ensure all institutional managers and supervisors are knowledgeable and properly trained to carry out their duties in this space.

DG: What’s your favorite part of teaching/presenting?

MH:  My favorite part of teaching/presenting is hearing from former students/participants on how they were able to apply the learning objectives to achieve desired results. I also like to observe the facial expressions when they “get it” during the training session.

Mr. Hill teaches on numerous FELTG topics, including Leadership, Labor Relations, Employee Relations, and EEO. If you’d like to bring Mr. Hill to your agency (onsite or virtually) for training, contact me at [email protected].

The Power of Disability Inclusion in the Workplace

By Michael Murray, Special Guest Author, March 22, 2021

I have been so pumped to see meaningful conversations about workplace diversity and inclusion that have been happening around the country. The most progressive workplaces always include those of us with disabilities.

Creating disability-inclusive workplaces big and small, federal or private involves recognizing that people from all walks of life can make valuable contributions. Including the diverse perspectives of people with disabilities leads to innovation, creativity and new ideas that ultimately lead to better outcomes. Some organizations recognize these qualities and intentionally focus on disability employment and inclusion. According to an Accenture report, these “champions” see many benefits: 28% higher revenue, twice the net income, and 30% greater profit margins than those without a similar commitment.

So, if the bottom line shows that disability inclusion is smart policy, then how can organizations overcome resistance and fully embrace it?

Recognizing how subtle biases hurt

To create a disability-inclusive environment, employers and employees need to start by examining micro-messages and unconscious biases happening in the workplace. [Editor’s note: For training on unconscious biases, join FELTG for Honoring Diversity: Eliminating Microaggression and Bias in the Federal Workplace on April 7 from 1-3 pm.]

In a truly inclusive workplace, each person should feel they belong and that their uniqueness is valued. Often, workplaces with diversity and inclusivity aren’t the direct result of a clear policy or rule. Instead, they evolve over time from a collection of subtle, unconscious biases and micro-messages that may seem harmless on the surface. People develop certain filters of what is and isn’t acceptable, sometimes making flawed connections or maps in their brains that lead to poor solutions and lost resources.

One such unconscious bias is the “like-me” bias. Managers may unintentionally hire and have people on their teams who are similar to them, whether physically, culturally or economically. On the surface, these actions don’t immediately appear to favor one individual over another, but when digging deeper, it is often found that these practices cause managers to favor ideas from like-minded individuals, making others feel disconnected from a team and the organization as a whole. This is especially true when engaging with the disability community. For example, you have heard it said, “At least you have your health.” Though the intent may be well meaning, the use of this pleasantry unintentionally implies that having a disability is a negative attribute, which it is not. Other subtle cues in expression, tone, body language and vocabulary can further contribute to whether someone feels engaged or disengaged, included or excluded. Fortunately, biases are not fixed. Biases can change with education, intentional discussions and trainings.

Building an inclusive business culture

The path to disability inclusion is rewarding, and resources are available to help employers along the way. The Employer Assistance and Resource Network on Disability Inclusion (EARN) offers a framework, developed with the help of employers who have already put in the work and found success. EARN outlines seven key elements: leadership commitment to an inclusive culture, outreach and recruiting, talent acquisition and retention, reasonable accommodations, communication of company policies, accessible information and communication technology, and accountability and continuous improvement. Plus, EARN offers strategies for tackling each area.

EARN, in collaboration with the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP), has also developed a Workplace Mental Health Toolkit. This guide helps employers understand how to foster a mental health-friendly work culture through an easy-to-follow framework known as the “4 As” – awareness, accommodations, assistance, and access.

Awareness involves strategies for educating employers and workers about mental health issues and taking action to foster a supportive workplace culture. Accommodations means providing employees with the supports they need to perform their job, such as flexible work arrangements. Assistance refers to helping employees who have, or may develop, a mental health condition, something many employers do through formal employee assistance programs (EAPs). Access encourages employers to assess company healthcare plans to ensure or increase coverage for behavioral or mental health treatment.

Additional resources for building a supportive and inclusive workplace include the Job Accommodation Network, the National Business Group on Health [PDF], and the Center for Workplace Mental Health. [Editor’s note: You can learn more about the Accommodation process during FELTG’s upcoming Reasonable Accommodation in the Federal Workplace webinar series, starting July 15.]

Making changes to established structures

Focusing on disability inclusion may mean that employers must question and change organizational structures, such as processes around recruiting, hiring, and training. Are they actively recruiting from institutions or organizations that include people with disabilities? Does the interview process unintentionally screen out people? For example, people with autism may find making eye contact hard or distracting, something that interviewers may falsely use to decide if a candidate is being forthright and engaged. Also, can onboarding or training be modified to accommodate candidates with disabilities?

If disability inclusion is a goal, then support around communication, feedback and collaboration must be available. Employers can establish diversity and inclusion councils, which can include representatives from all levels and backgrounds to develop ways to improve in this area while also serving as ambassadors to the rest of the company.

Employee resource groups also can be valuable to those seeking information or support. Including people with disabilities in each of these strategies is a must.

Leading by example

Employers who invest in and communicate their disability inclusion efforts send their workforce an important message: It is a meaningful exercise with value for everyone. Workplace diversity can improve a federal organization’s performance or a private company’s bottom line, but the benefits extend far beyond financial figures, opening the door to improved productivity, innovation, and reputation and to greater appreciation for every person’s unique gifts.

About Michael Murray

Michael Murray is the chief relationship officer for GT Independence, a national leader in financial management services for self-directed in-home and community-based care. His lifelong drive for inclusion is fueled by his experience as a person with a learning disability and ADHD. Michael is the former Director of the Employer Policy Team at the Department of Labor’s Office of Disability Employment Policy. Michael also served as Deputy Director at the Office of Diversity and Inclusion (ODI) at the U.S. Office of Personnel Management (OPM), where he was also responsible for steering and designing the government-wide policies and programs of 56 Federal agencies throughout the country to increase Federal employment of individuals with disabilities. His lifelong drive for inclusion is fueled by his experience as a person with a learning disability and ADHD. He can be reached at [email protected]

Takeaways from OPM’s Guidance for Implementation of Executive Order 14003

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By Deborah Hopkins, March 8, 2021

Over the past several weeks, we’ve been anticipating guidance from OPM on Executive Order 14003, and last Friday afternoon, we finally received it. (Who would have ever thought 6 weeks could feel like such a long time!) After an initial read, we’ve highlighted a few items on how EO 14003 impacts the rescinded EOs — items that will answer a number of questions that have been lingering since January 22.

On Executive Order 13950 (Schedule F):

    • OPM approvals of agency petitions to move positions to Schedule F are revoked. Any agency that received such an approval must cancel any actions taken based on OPM approval of the agency’s petition.

On Executive Orders 13836 (Rules for Bargaining) and 13837 (Union Time)

    • Reopen those contracts, folks. Agencies are directed to reopen any union contract that contains any provision implementing President Trump’s workforce EOs. Not only that, if agencies are currently in the process of negotiations, or even at the stage where an impasse has been taken to the Federal Service Impasses Panel, they are now required to revisit the issue and suspend, revise or rescind any changes that were made or proposed as a result of the Trump EOs.
    • Agencies should “take a hard look” to see if EO 13836 influenced the strategies that were used in bargaining with unions. EO 14003 neither requires nor prohibits affected agencies from reopening CBAs on other matters not related to subjects covered by EO 13836.
    • Also on 13836, agencies are no longer required to submit CBAs and arbitration decisions to the OPM CBA public database. Interestingly, “OPM, under its own statutory and regulatory authority, is still requiring that agencies submit to OPM, within 10 days of issuance,” any arbitration awards involving performance and misconduct-based actions under chapter 43 and 75.
    • On 13837, if agencies negotiated their contracts to limit union official time to no more than 25 percent for any union official, or limited the amount of official time to one hour per bargaining unit employee, agencies must “engage impacted unions, as soon as practicable, to suspend, revise or rescind the actions covered in these CBA provisions.”

An interesting footnote to that: “To the extent agencies were complying with the terms of an expired CBA immediately prior to implementing any EO 13837 requirements, agencies must revert to prior practices until a new agreement is negotiated with the union.” (emphasis mine)

On Executive Order 13839 (Discipline and Performance Accountability)

    • “[A]gencies should not delay in implementing the requirements of Section 3(e) of EO 14003 as it relates to any changes to agency policies made as a result of OPM’s regulations.”

OPM will also be amending its recently issued regulations on EO 13839, to comply with 14003. There will be at least a few weeks, if not several months, between now and when OPM’s amended regulations are posted for comment and ultimately become final, where agency actions might be in conflict with the existing OPM regulations that incorporated EO 13839. This OPM guidance lets agencies know they are free to make policy changes to comply with EO 14003 before OPM’s regulations are amended, and agency leadership will not need to be concerned that their policies and subsequent actions are in violation of OPM regulations. In other words, OPM won’t be enforcing those regulations.

For example, agencies would now be permitted to implement a clean record agreement with an employee, even though current regulations prohibit such an action. Eventually the regulations will incorporate the directives found in 14003.

This is just a selection of takeaways, and isn’t comprehensive, so be sure to read the memo for yourself then join me and Ann Boehm on April 8 as we entertain a discussion on what this all means for Federal agencies, as well as how this guidance interplays with Executive Orders 13985 and 13988, in the webinar Biden Executive Orders, OPM Guidance, and an Update on the Status of the Civil Service.

We’re also preparing a list of follow-up questions for OPM, and will have answers in time for the training. We would be happy to include your questions as well, if you’ll send them along. [email protected]

Transition Talk: Be Honest and Positive, and Offer Training to Appointees

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By Dan Gephart, March 2, 2021

This is the final article in our Transition Talk series, where members of the FELTG Faculty share their advice on how to best work with presidential appointments and thrive under a new Administration. See our previous articles in the series:

 

Ann Boehm experienced a number of presidential transitions during her 26-year Federal career. Her most recent transition was in 2017. Ann was working for the U.S. Marshals Service, where more than 90 presidentially appointed marshals were potentially entering on duty.

“During the 2017 transition, we decided to mandate a training course for the new U.S. Marshals,” Ann said. “The training included procurement, appropriations, and personnel law, as well as other things regarding the day-to-day running of the U.S. Marshals Service. The Marshals greatly appreciated the training. Presidential appointees are busy people, but agencies committed to providing them with effective training can ease the transition for everyone involved.”

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

AB: I think it is important for presidential appointees to listen to the career Federal employees. Sometimes the appointees undervalue the career feds. They also may be coming from the private sector or even state or local government, and they need to get assistance from the career employees on how procurement, appropriations, and personnel (from hiring to firing), among other things, all work in the Federal government.

DG: What is your advice for FELTG readers working with new presidential appointees?

AB: The most important thing to do when working with new presidential appointees is to maintain a positive attitude. Most human beings do not like change, and most presidential appointees come into an agency looking to change things. Career Federal employees can sometimes be overwhelmed by appointees coming in and wanting to alter the way the agency runs.

It’s important to understand the appointees’ motivation, and also to educate them if an idea is unlikely to succeed. In my experience, the appointees want to succeed, and a logical argument can go a long way toward helping them understand agency culture and what is likely to be the best way to further the agency’s mission.

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

AB: I think the most important skills are flexibility and honesty. Do not be afraid of new ideas, but be prepared to explain when things are not working.

Ann will be one of the presenters at the upcoming MSPB Law Week, FLRA Law Week and the FELTG Forum 2021: Emerging Issues in Federal Employment Law. If you’re interested in bringing Ann Boehm to your agency for training, email [email protected].

President Biden and the Trump Civil Service EOs: What It All Really Means

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By William Wiley, February 22, 2021

Well, it didn’t take long, did it? In his first three days on the job (not bad for a probationer), President Biden recognized what most every reader of this newsletter already knows: “Career civil servants are the backbone of the federal workforce.” Take THAT, you crummy old political appointees. You just got slammed by The Man in the White House.

On Jan. 22, 2021, the White House issued the “Executive Order on Protecting the Federal Workplace,” developed in large part to set aside several EOs issued by the previous White House. Those Trump EOs, in the eyes of many, undermined or had the potential to undermine a number of core statutory protections for career federal employees.

It’s our job here at FELTG, among other things, to try to explain to normal people what actions like this really mean out there on the front lines where most of you in the FELTG Nation spend your time trying to do the work of government. So here we go with our insightful and occasionally scintillating analysis. (Editor’s note: For more detailed analysis, join Ann Boehm and Deborah Hopkins for an encore presentation on Changing Course: Understanding Biden Executive Order on Labor Relations, Performance, Discipline, and Schedule F on Thursday at 2:30 pm.)

First things first: DO NOT BE MISLED BY WHAT YOU HEAR OR READ IN THE MEDIA. Whenever you read a newspaper article about these EOs or see a talking head “expert” on CNN or Fox, keep in mind that those (usually) well-intend folks are there to grab your eyes, not necessarily to provide detailed guidance to exactly what is happening. “If it bleeds, it leads” is a decent motto for a reporter, but that doesn’t always fit with the bottom line to what’s really going on. For example, from the very first that the previous EOs hit the ground in the summer of 2018, articles in the media often read as if it was the End of the World for Federal employees. Our friends on the union side were horrified and appalled at what was happening to their rights. Lawyers who represent employees in appeals and grievances were beside themselves with the restrictions being imposed by the White House on the Federal workforce protection processes. Even Federal judges, when called upon to rule on related cases before them, did not always take the time to parse out exactly what the Trump EOs were doing, and not doing, to the civil service.

Our job here a FELTG is to inform and provide guidance related to civil service law. Whether it bleeds or not, makes little difference in our analysis of these issues. Neither should yours. Read those articles and watch MSNBC or Newsmax every chance you get. Just keep in mind that you need a more balanced analysis to decide what you have to do to implement this new Biden EO. So here we go with our view of balance:

Executive Order on Protecting the Federal Workplace

There are a number of issues addressed in the Biden-EO that are important, but beyond the scope of this limited article:

  • The dreaded Schedule F is revoked (❤).
  • Centralized OPM control of labor relations is revoked.
  • The direction that management representatives negotiate to restrict union time, deny unpaid union access to government facilities, and limit the scope of grievance procedures is revoked.
  • The prohibition on negotiating the “permissive” subjects of bargaining, 5 USC section 7106(b)(1), is revoked.

These issues arose because of the issuance of EOs 13836, 13837, and 13957. As a practical matter, these three EOs (of the four being rescinded) were the most controversial from a legal standpoint and were challenged in Federal court immediately upon issuance.

That leaves EO 13839, “Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles.” Unlike the other Trump EOs being set aside by the Biden EO, there were no big legal issues being put into play. Rather, EO 13839 simply directed agencies to exercise their existing legal discretion, defined by 40 years of MSPB case law, in a particular manner. A number of articles written at the time of issuance described this Trump EO as taking away existing employee rights. Well, as we wrote in this newsletter at the time, there were NOT any employee rights being violated. Yes, the EO directed that managers exercise their existing flexibilities in a narrow manner disliked by a number of employee representatives in our field, but that didn’t make the EO mandates illegal.

EO 13839

Here’s what the Biden EO says about this particular “accountability” EO:

Sec. 3 (c) Executive Order 13839 of May 25, 2018 (Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles), is hereby revoked.

Sec. 3 (e) The heads of agencies whose practices were covered by Executive Order … 13839 shall review and identify existing agency actions related to or arising from those orders. Such actions include:

Sec. 3 (e)(v) Revisions to discipline and unacceptable performance policies, including ones codified in bargaining agreements, issued pursuant to section 7(b) of Executive Order 13839;

Sec. 3 (f) The heads of affected agencies shall, as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding, the actions identified in the review described in subsection [above].

Carefully notice what this EO requires you to do (and, conversely, what it does NOT require you to do):

  1. Read section 7(b) of Trump Executive Order 13839, which says, “The head of each agency shall take steps to conform internal agency discipline and unacceptable performance policies to the principles and requirements of this order,”
  2. Determine which agency discipline and performance policies were modified because of EO 13839, and then
  3. Rescind those policies.

These are the requirements that EO 13839 mandated you to include in your agency’s policies:

  • Limit opportunity periods to demonstrate acceptable performance (DPs/PIPs), generally, to 30 days.
  • Do not prohibit removing an employee simply because a different employee was not removed for comparable conduct.
  • Do not require suspension of an employee before proposing to remove that employee.
  • When selecting a penalty, consider the employee’s disciplinary record and past work record, including all past misconduct — not only similar past misconduct.
  • Issue decisions on proposed misconduct removals within 15 business days of the end of the employee reply period.
  • Limit the written notice of adverse action to 30 days.
  • Use the adverse action (misconduct) removal procedures in appropriate cases to address instances of unacceptable performance.
  • Prioritize performance over length of service when determining which employees will be retained following a reduction in force.
  • Do not, in general, modify an employee’s official personnel records as part of the resolution of an employee’s complaint, grievance, or appeal.
  • Provide detailed reports periodically to OPM relative to removals, settlements, and disciplinary actions.

Steps 2 and 3, require agencies to rescind any of the above requirements in agency policies IF AND ONLY IF those policies were implemented because of the mandates of Trump EO 13839. Remember, there is nothing inherently illegal in these policies. In fact, they closely track well-established MSPB case law, Board decisions that acknowledge that agency managers have significant flexibility when disciplining and removing non-productive civil servants. If you had any of these policies in place before EO 13839 was issued, or developed these policies independently of EO 13839, then the Biden-EO does not require you to rescind them.

For example, if your agency independently decided to issue a policy that a DP generally should not exceed 30 days, you may keep it in place. President Biden isn’t saying that there’s anything wrong with a 30-day DP, just that a decision to implement a 30-day DP is not something that he thinks should be mandated by a Presidential order. He has said he does not believe in an “imperial Presidency.” The abolition of EO 13839 (and, in many ways, the parallel revocation of EOs 13836 and 13837) is a reflection of that style of management, allowing these decisions to be made by lower-level managers, not by mandate from the Big Kahuna himself.

Bottom Line: Saying that the Biden EO has restored “employee rights” to the civil service is a limited characterization. At least relative to EO 13839, President Biden has restored “management flexibilities” relative to decisions being made by agencies when dealing with poor performers and misbehaving employees. For example, under the Trump EO, an agency could not offer an employee a clean record in exchange for the employee withdrawing an appeal. Under the Biden EO, an agency can now offer a clean record in resolution of a complaint. It doesn’t HAVE to offer a clean record, but it can. Greater management flexibility can be a good thing.

On the other side, however, increased management flexibility can result in inexperienced managers exercising their flexibilities in ways that do not necessarily lead to an efficient and effective federal workforce. For example, we have it on good authority that one of the reasons that the Trump EO limited DPs to 30 days was because records show that some federal supervisors were initiating 90, 120, even 6-month DPs. President Biden has now restored the ability of agencies to return to such extended demonstration periods if agency policy-makers so choose.

Now that you have your flexibilities restored, you might want to consider coming to an FELTG seminar or two for help in deciding how to exercise those flexibilities legally. Based on the many years of experience possessed by just about every one of our instructors and speakers, we can show you what the law and case law is relative to all of these civil service management issues, guide you through the decision-making process while weighing risks and benefits, and even assist you in exercising the options that you were denied under the previous EOs.

We’ve never claimed that we should make agency decisions for you, but we do claim to know the legal parameters in which you can act. It’s a new day in the civil service. Take advantage of it while you can. [email protected]

Joe Schimansky: Add Value, Listen, and Set the Record Straight

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By Dan Gephart, February 2, 2021

This is the third article in our Transition Talk series, where members of the FELTG Faculty share their advice on how to best work with presidential appointments and thrive under a new administration. See our previous article in the series:

 

Joe Schimansky (pictured here), former executive director of the Federal Service Impasses Panel, still regrets how he handled a long-ago meeting with a newly confirmed political appointee.

Joe was asked a question about the FSIP’s processes. After a purposely succinct response, the appointee accused Joe of answering with a variation of “because that’s the way we always do it.”

“To be clear,” Joe explained. “That’s not what I said, but how she interpreted what I said. At that point, I should have responded by indicating that the FSIP’s processes have evolved over many years for sound practical reasons.”

In deference to the appointee’s position, Joe did not respond. He learned the hard way that it often falls on career staff to set the record straight.

“Political appointees often come into their first meetings with their newly acquired professional staffs after having been told how badly the particular organizations they are now responsible for leading were run by their politically appointed predecessors,” he said.

During one transition, a higher-up in a federal sector union had met with President Clinton’s new FSIP chairman and “spread poorly informed allegations” about how long it took the previous administration to resolve impasses.

“When I met with my new boss, her head had already been filled with horror stories about how incompetent her newly inherited staff was at fulfilling its mission in a timely manner,” Joe said. “I was fortunate to have a new boss who had been a career fed and understood the dynamics of transitions.”

Joe was given time to research the allegations and found a legitimate explanation for all of the delays. But you’re not always going to work with appointees with Federal backgrounds. Joe offered some other worthwhile advice.

DG: What is your best advice for FELTG readers working with new presidential appointees?

JS: When dealing with new presidential appointees, the best advice I can think of is to strive to add value to their lived work experience. How you do that usually depends on the appointee’s understanding of the mission of your agency and the portion of that mission your particular part of the organization is responsible for. The typical way to assess this is by preparing detailed briefing materials that cover the main areas of your professional responsibilities and to schedule a reasonable time period to present the material.

Always remember you are engaging in a dialogue with the appointee and not merely presenting a stale lecture. Engaging in a dialogue allows the appointee to ask questions that will inform you of what the appointee understands already and what they may not grasp about the limits of their authority.

In this regard, you should be attentive to how the briefing is being perceived. I recall a briefing that I and the rest of my staff prepared for a group of newly appointed Impasses Panel members. It became clear early on that the material was far too detailed for the audience — part-time presidential appointees, most of whom had very little knowledge of how the Federal sector impasse resolution process works. The staff quickly perceived that the presidential appointees’ eyes were glazing over as we dug deeper and deeper into the FSIP process. The best response in this circumstance was to shorten the length of the briefing and to highlight only the most important points you want them to come away with. Opportunities to “teach them up” would be plentiful over the next four years.

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

JS: The first skill that popped into my head was “active listening” defined as “where you make a conscious effort to hear not only the words that another person is saying but, more importantly, the complete message being communicated.” To do this, you must pay attention to the other person very carefully, particularly to his or her body language and non-verbal cues. I would suggest that most career management officials meeting with their newly appointed political bosses have reached that higher level in their organizations because they were already accomplished active listeners, but I’m sure there are exceptions. Through active listening, a career civil servant is more likely to add value to a political appointee’s lived work experience. If you do that, you can survive and thrive in a new administration.

Joe Schimansky will also be one of the presenters at FLRA Law Week. Joe is available to provide training to your agency on topics such as employee accountability, MSPB and EEO law, discipline, and much more. If you’re interested in bringing Joe Schimansky to your agency for training, email [email protected]