The State of the Civil Service: The Whiplash is Real

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By Deborah Hopkins, January 25, 2021

For the last couple of Januaries, I have written an article on the state of the civil service. It provides a glimpse of where  we’ve been over the last year, and gives me a chance to point out the one or two significant changes we might be expecting.

This year, so many changes have taken place over just the last few days, the undertaking to summarize what’s happening is massive. But I’m up for the task if you have a few minutes to read it. Let’s look at what’s happening in the world of Federal employment law.

Federal Employee Morale

For decades, Federal employees have borne the brunt of public scrutiny. When one employee does something bad, somehow all 2 million-plus are unfairly painted as slackers who break rules and earn an easy paycheck on the taxpayers’ dime while not really doing any work. That is dead wrong, but such a perception deeply impacts morale.

Morale among employees has been even lower over the past few months as they have dealt with the physical and mental challenges of a global pandemic, a contested election, a riot at the Capitol, and tumultuous transition to a new administration.

Last week President Joseph R. Biden, Jr. put out a video where he directly addressed career civil servants, thanking them for their service and letting them know how important they are to a functioning government. “You’re running the show,” he said. The President’s words, combined with actions taken in his first few days, demonstrate that the Federal workforce is a priority.

Executive Orders

Just hours after being sworn in, President Biden signed two executive orders that directly impact Federal employees:

  • 13985: Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
  • 13988: Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation

There’s a lot to unpack in these orders, including time-sensitive requirements for agencies, plus details on how the Supreme Court case Bostock v. Clayton County applies to the Federal government.

We’ll be sharing the most important takeaways and action items in the 60-minute webinar Changing Course: Understanding the Biden Executive Orders on Racial Equity, Gender Identity, and Sexual Orientation on February 9 at 1:00 pm eastern. Join us to be sure your agency is compliant with these new requirements.

But wait! Only two days later, President Biden issued an EO on Protecting the Federal Workforce. With seven sections and a signature, this EO revoked President Trump’s Executive Orders 13836, 13837, and 13839 – the famous EOs heard ’round the world that impacted labor relations official time, contract negotiation timelines, topics of bargaining, performance and disciplinary actions, clean record settlements, and more. And if that wasn’t enough, it also eradicated the Schedule F classification mandated by EO 13957.

You might have questions, such as:

  • What does this mean if your CBAs were already renegotiated?
  • Is progressive discipline going to be mandatory now?
  • Do PIPs have to be longer than 30 days?
  • What happens if your agency already sent Schedule F lists to OPM?

There’s a lot to figure out and not a lot of time to do it. We know you are incredibly busy, so leave it to FELTG to weed through all the details and provide you with the important information. Ann Boehm and I will present all the need-to-knows and action items in a 90-minute webinar Changing Course: Understanding the Biden Executive Order on Labor Relations, Performance, Discipline, and Schedule F on February 9 at 2:30 pm eastern.

MSPB

In Democratic administrations, we tend to see MSPB Members who are more pro-employee; in Republican administrations the majority tends to be more pro-management (depending on how the vacancies fall, as these are seven-year fixed terms). Because all three positions are vacant, President Biden will almost certainly nominate two Democrats and one Republican to the MSPB.

But if you think this pro-union administration is going to take it easy on employees who misbehave, think again. During a virtual swearing-in ceremony on January 20, the President told several hundred political appointees: “I’m not joking when I say this: If you’re ever working with me and I hear you treat another with disrespect, talk down to someone, I promise you I will fire you on the spot. On the spot. No ifs, ands, or buts. Everybody is entitled to be treated with decency and with dignity.”

Following this logic, we can expect that agency leadership will also prioritize discipline for career employees who engage in disrespectful conduct, conduct unbecoming a federal employee, or similar charges. And if your disrespectful employees happen to be law enforcement officers, the standard is even higher. We’ll explain why on February 23 during the virtual training A Higher Standard: Disciplining Law Enforcement Officers for Misconduct.

We’re expecting nominees to be named soon, and if we’re really lucky we’ll start getting some decisions in time for MSPB Law Week, March 29 – April 2, so register soon and save your seat.

Whistleblowers

The incoming Board Members will have a lot of work to do. Almost 3,100 Petitions for Review are awaiting action, and somewhere around 700 of those deal with allegations of whistleblower reprisal. We can expect the Biden administration to make whistleblower cases a priority, as the President himself has spoken about the importance of employees coming forward with allegations of waste, fraud, and abuse. If you need to brush up on your whistleblower law (and really, who among us doesn’t?), FELTG Instructor Bob Woods will do that in just 60 minutes on February 25 during the webinar Why, How and When to Avoid Whistleblower Reprisal.

Inspector General Oversight

Expect a return to independence for Federal Inspectors General. Last May, then-candidate Biden told the Washington Post that he would never fire a Federal IG. In his words, IGs are “… designed to make government honest. To keep it honest.”

IGs will likely be busy with this shift in priorities – as happens with any change in administration – and it’s time to plan for the year ahead, now that those priorities are becoming more clear. Join us this Wednesday, January 27, at 12:30 pm eastern for the virtual training An OIG Guide to Annual Planning and Benchmarking for Best Practices.

EEOC

Here’s something interesting. The EEOC under the Biden administration will have a Republican majority (3-2) until July 2022. The five Commissioners have 5-year staggered terms, and Commissioners can only be removed for cause – they don’t serve at the pleasure of the President. President Biden made Commissioner Charlotte Burrows (D) the Chair on January 21, but this does not alter the timelines of the appointment terms.

Where will the Commission take us in the year ahead? Find out during EEOC Law Week, March 15-19.

FLRA

Friday morning, Federal labor relations was one way. Friday afternoon, the outlook was 180 degrees different. We’re working through EO 140XX . By our February 9 webinar, we’ll have a summary of what you need to do regarding contract provisions that met EO 13836 and 13837, guidance on permissive bargaining, official time, and more. And join us for FLRA Law Week May 10-14, where the entire world of Federal labor relations will be discussed in depth.

Closing Thoughts

I know this was a long read, so thanks for hanging with me. For more than 20 years, FELTG has done its best to be your source for the most accurate and current Federal employment law news and training, and this year is no different. These actions are so important, and have such an impact on you, that we would be remiss if we didn’t provide you with content and training opportunities on all of it.

Stay tuned. It’s going to be quite a year. [email protected]

Top 10 FELTG Newsletter Stories of 2020

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By Dan Gephart, December 7, 2020

Our last newsletter of the year will be published next week. So barring any major late-breaking news, this is the final FELTG Flash of 2020. As we’ve done the last couple of years (2019, 2018), we’d like to take this opportunity to look back at our most popular newsletter stories (based on the number of reads and forwards) over the past year.

I know what you’re thinking: “A look back? At 2020?”

Well, yes. While many of us quarantined in our homes, federal employment law challenges continued to run rampant. As always, FELTG was here to help guide you.

This year’s Top 10 stories reveal a wide range of issues related to performance, conduct, telework, sexual harassment and, in a few cases, how those situations were impacted by COVID-19.

1 – He Claimed He Teleworked for 2 Months, but His Laptop Charger Was at the Office (June)

2 – Why a Supervisor Should Never Give a Summary Performance Rating of Unacceptable (January)

3 – Failure to Follow Instructions: A Charge That Seems Particularly Fit for 2020 (May)

4 – What Dave Wants Dave Gets: Sexual Harassment is Misconduct (September)

5 – To Err is Human — and Maybe Also a Reason to Change a Personnel Record (May)

6 – Is There a Legal Path to Fire Dr. Fauci? (July)

7 – The Great Debate: Douglas in the Proposal or Douglas in the Decision? (January)

8 – Ripped From the Headlines: A Case for Today’s World (August)

9 – Precedential Fed Circuit Decision: Which Expert Determines if Employee is Unfit (October)

10 – How Long is Too Long for COVID-related LWOP? (November)

Twelve months from now, we’ll once again share our top 10 stories. Let’s hope that we will be looking back at a much better year. [email protected]

Good News: With This FLRA, It’s Good to be an Agency, Part Deux

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By Ann Boehm, November 30, 2020

A few weeks ago, I told you about the three FLRA decisions that are definitely on the pro-agency side of the bargaining spectrum: U.S. Department of Education and U.S. Department of Agriculture, 71 FLRA 968 (Sept. 30, 2020); U.S. Office of Personnel Management, 71 FLRA 977 (Sept. 30, 2020); and U.S. Department of Agriculture, Office of the General Counsel, 71 FLRA 986 (Sept. 30, 2020). I focused that article on the first case and promised to provide in-depth coverage of the other two in a subsequent article. So here goes:

U.S. Office of Personnel Management, 71 FLRA 977

This case makes zipper clauses a mandatory subject of bargaining.

Let’s start with what may seem like a basic question: What is a zipper clause? A zipper clause is a provision in a collective bargaining agreement (CBA) that forecloses the union’s right to bargain during the term of the agreement on matters not contained in the CBA.

Agencies and unions have always had the ability to negotiate over inclusion of zipper clauses in the CBA, but until this decision was issued, zipper clauses were not mandatory subjects of bargaining. With the FLRA now stating that they are mandatory subjects of bargaining, the parties may bargain zipper clauses to impasse.

In practice, this could take away union rights to initiate midterm bargaining. It also could simply result in more clever negotiating tactics by the unions and agencies. Member DuBester suggested as much with this line from his dissent: “In reality, unions wishing to preserve their ability to initiate midterm bargaining will now be required to trade something of value at the bargaining table in hopes of securing what was, until today, a statutory right.” Id. at 985.

You heard it here agencies (thanks to Member DuBester). Be clever in negotiating. Zipper clauses are very much on the table.

U.S. Department of Agriculture, Office of the General Counsel, 71 FLRA 986

This case allows for Agency head review of expiring, existing collective bargaining agreements when there is a request for renegotiation pending.

Two key statutory provisions apply in the FLRA’s analysis of this matter — 5 U.S.C.§7114(c)(1), which provides that CBAs are subject to agency head review, and 5 U.S.C.§ 7116(a)(7), which provides that it is an unfair labor practice for an agency to enforce a rule or regulation in conflict with an existing CBA if the CBA was in effect before the date the rule or regulation was prescribed.

Since 1993, the FLRA has held that for CBAs that automatically renew upon expiration, the Agency head may review the agreement the day after the expiration of the CBA window for requesting renegotiation. Kansas Army Nat’l Guard, 47 FLRA 937 (1993). This review ensures that the renewed agreement complies with any rules or regulations that changed during the previous CBA term.

What the Department of Agriculture asked the FLRA to decide in this case is whether there can be Agency head review of an existing CBA when a party requests to renegotiate an expiring CBA with a continuance provision. It’s a pretty discrete issue, eh?

Here’s what the FLRA decided. If a continuance provision extends the CBA past the original expiration date, “the first day of the extension period that is beyond the original expiration date” is the beginning of a new term. Id. at 989. So, on the first day of the extension, all rules and regulations that became effective during the previous term apply, and the Agency head has 30 days to review.

Now once again, Member DuBester was not pleased. He believes this decision is contrary to 5 U.S.C. § 7116(a)(7). According to his interpretation of the matter, a continuance provision is an agreement that the existing CBA remains in full force and effect until a new CBA is approved. Id. at 990. That would foreclose Agency head review. He even goes so far as to say the FLRA’s explanation of how it determined that the extended agreement is in “a meaningful sense” not the same one in effect “is—to put it mildly—novel.” Shazam! Id. at 991.

Well, there you have it. As I said in my previous article, none of these three decisions eliminate the bargaining rights of unions. But they do tilt in the agencies’ favor. Count on all three being appealed by the unions. Stay tuned. And for now, have fun agencies. [email protected]

[Editor’s note: Want to learn more about these and other recent noteworthy FLRA decisions, such as the recent decision that dealt a “major blow” to the 2017 VA Accountability and Whistleblower Protection Act, and their impact on your agency? Register now for What’s Going on at the FLRA? Case Law Updates and More on December 8 from 1 – 2 pm ET.]

And Now Another Word With … Bob Lavigna

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By Dan Gephart, November 23, 2020

On the heels of positive vaccine news, talk about the eventual return to workplace normalcy has picked up. But that normalcy does not necessarily mean a sudden end to remote working, especially if government workers have a say.

Eighty-five percent of state and local government employees who did not work at home before COVID-19 want to continue working remotely permanently, at least part of the time, according to a recent survey by CPS HR Consulting. This fascinating report Leading Through a Pandemic: The Impact of COVID-19 on the Public-Sector Workforce [PDF], like most of the organization’s work, was focused on state and local governments. But it’s not a stretch to think that many federal employees feel the same as their more local counterparts.

Agency leaders are embracing telework, too. Several told Congress last week they also hope to make telework more permanent in the post-pandemic world. The CPS HR Consulting survey determined that “government should also view the demand for remote work as an opportunity to expand the search for talent (i.e., recruiting may no longer be limited by geography)” and that “leaders need to systematically ask employees for feedback to identify and meet the needs of all employees.” CPS HR Consulting suggests that government organizations:

  • Equip managers and supervisors with the skills to manage results and outcomes (and not just time and attendance)
  • Redesign jobs to adapt them to remote work
  • Acknowledge and communicate that employees working from home must have the flexibility to balance work and personal lives
  • Provide the tools and resources remote workers need, especially technology

“Effective leadership, flexible work environments and effective use of technology can drive employee productivity, well-being and engagement and, therefore, organizational performance – regardless of where employees are working.”

This month, we continue our conversation with Bob Lavigna, director of CPS HR’s Institute for Public Sector Employee Engagement. Lavigna (pictured above) is the former vice president of research for the Partnership for Public Service and author of Engaging Government Employees: Motivate and Inspire Your People to Achieve Superior Performance.

DG: How do you “equip managers and supervisors with the skills to manage results and outcomes (and not just time and attendance)?”

BL: When employees are working remotely, it’s no longer possible for managers/supervisors to know if employees are working productively simply by seeing them at their desks or work sites. Managing in this new and different environment is often difficult. According to one government HR executive, managing remote employees means ditching the, “If I can’t see you, you’re not working” mentality.

Instead, leaders need to measure and manage goals, results and outcomes, not just time and attendance. This often-difficult transition requires new performance metrics, tools, systems, and expectations. And, where possible, even linking financial rewards to results.

To help managers and supervisors adapt, organizations are providing training, tools, resources and tips on leading a remote workforce. Many of these programs are online (including our own CPS HR Consulting training curriculum). For example, one city has assembled a manager’s toolkit that includes tips, articles, webinars, etc. on managing a remote workforce. Organizations are also setting the expectation that managers and supervisors need to be more flexible. According to one government executive, “We’ve had to drastically change,” putting aside the usual focus on counting workers’ hours and days. “People who have kids need to take an hour off to put someone down for a nap or to make a peanut butter and jelly sandwich.”

Government may also need to change how leaders are identified and selected. Organizations need to select managers and supervisors who can manage effectively in this new environment, instead of advancing employees because they have good technical skills or have long tenures.

DG: The report revealed that employees were “anxious” and “stressed” and unsettled, but that was early on in the crisis. Do you think that the answers would be different now? 

BL: Good question. There is some evidence (e.g., from Gallup) that engagement levels were on the rise after declining at the beginning of the COVID-19 pandemic. However, the recent resurgence of the coronavirus is likely to keep everyone unsettled and on edge. I don’t think anxiety and stress will decline until we have an effective vaccine and see some light at the end of this tunnel.

DG: There’s a general assumption among many remote workers that when you work at home, you work more hours. While 34 percent of remote working respondents said they were working more, the majority are not. Is that general assumption just wrong?

BL: I think that 34 percent is a substantial number. But I question the assumption that, during COVID-19, working remotely automatically translates into working more. Given the other factors that affect the ability to work remotely, like the availability of technology and personal responsibilities such as dealing with kids and spouses at home, I don’t think it’s possible yet to evaluate whether the new working environment has resulted in increased workloads. Let’s see what happens when things get back to “normal.” What has clearly changed, however, is when work is getting done.Employees operating remotely are working when they can, while also balancing their personal responsibilities. Therefore, the traditional workday has been stretched.

And we believe this is a permanent change. As the research conducted by the Institute and others has shown, employees working remotely for the first time want to continue this arrangement permanently, at least part-time. In other words, the world of work has dramatically changed. Organizations, including in government, need to adapt to – and not resist – this evolution. Otherwise, government will not be able to attract and retain top talent.

DG: Some employees view attempts to engage them skeptically. How do you get past that?

BL: In our work conducting engagement surveys across the nation, we’ve encountered this skepticism. I remember one employee who stated during an employee engagement kickoff meeting that, in his opinion, the organization’s focus on engagement was merely a cynical attempt to squeeze more work out of employees. My answer was that efforts to improve engagement – done right – should be a win-win. Employees feel better about their work and their organization, and, therefore, are motivated to deliver for the people they serve.

But what does “done right” mean? It means surveying employees to understand empirically what the workforce issues are, preserving the confidentiality of employees’ responses, sharing survey results, making a long-term commitment to improving engagement and – most important – taking action on survey results. Organizations that survey and then fail to act on the results will see a decline in engagement – and an increase in skepticism. And they will deserve these outcomes.

DG: What role does onboarding play in the eventual success or failure of employee engagement efforts? And, if it does have an impact, how do you make sure that remote onboarding lays the groundwork for successful employee engagement?

BL: You only get one chance to make a first impression. Research, including by the Partnership for Public Service, has shown that effectively onboarding new employees results in a higher level of engagement, lower turnover and faster time to full productivity.

But it’s important to define what onboarding is – an integrated set of activities during the new employee’s entire first year that provides the information, support and resources the employee needs to succeed.

Of course, like most activities with a remote workforce, onboarding becomes more complicated. But the fundamentals are the same – provide tools and resources, connect with the supervisor, assign work, set expectations, deliver training and provide feedback. For remote workers, these steps may need to be done virtually. I have worked remotely from my home in Madison, WI for two organizations (way before COVID). In both cases, I was onboarded pretty seamlessly, including setting up my laptop, printer, etc. It can be done, even with a remote workforce.

[Editor’s note: Bring FELTG’s popular webinar training Manging a Mobile Workforce: Tools for Accountability to your agency. For more information, contact Dan Gephart at [email protected]]

And Now a Word With … Bob Lavigna

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By Dan Gephart, November 10, 2020

We’re still a good half-year away from the next Public Service Recognition Week, but we need not wait until May 2021 to recognize the critical work civil servants have done over the last several months.

You know it’s a challenging year when the (arguably) most well-known and respected federal employee, Dr. Anthony Fauci, needs to be protected from constant death threats – at the same time he and his colleagues are working to save lives. Meanwhile, we need to recognize the important work everyone else out there in FELTG Nation is doing during these very trying, and logistically challenging times.

Recognition is a key part of employee engagement, and so we reached out this week to someone who knows a lot about both subjects. Bob Lavigna (pictured above), the former vice president of research for the nonprofit/non-partisan Partnership for Public Service, directed the annual Best Places to Work in Federal Government. The Partnership was also responsible for the federal government’s wide embrace of Public Service Recognition Week, providing a toolkit, organizing events, and facilitating executive proclamations.

Lavigna, author of Engaging Government Employees: Motivate and Inspire Your People to Achieve Superior Performance, is now director of the CPS HR Institute for Public Sector Employee Engagement. He has also been assistant vice chancellor and director of HR for the University of Wisconsin — and he’s a previous winner of Governing Magazine’s Public Official of the Year award.

Lavigna’s focus these days at CPS is on local and state government, as well as nonprofits, but his advice and perspective are as useful as ever for federal leaders.

DG: Not considering the pandemic, what are the biggest barriers keeping supervisors from being better at employee engagement?

BL: I think there are two primary barriers – not understanding why improving engagement is important and not knowing how to improve it.

In the first case, supervisors often consider engagement to be just another touchy-feely HR fad or about making employees happy all the time. And their job is to deliver results, not make sure everyone is happy. What these managers and supervisors often fail to realize is that improving engagement drives productivity and results. In other words, they don’t appreciate the business case for engagement. As I describe in Engaging Government Employees, decades of research, including in government, have clearly shown that improving engagement can dramatically improve organizational performance.

The second reason concerns how to improve engagement. Too often, even when leaders want to improve engagement, they guess about how. The book 180 Ways to Build Employee Engagement includes great suggestions. The challenge is to figure out what will work in an individual organization or work unit. Too often, leaders act without data on what matters to their employees.

Research has shown that the best way to understand the level of engagement is, and what influences engagement, is to conduct an engagement survey. As we advise the public-sector organizations we conduct engagement surveys for, it’s important to generate survey data and drill down to the work-unit level. We can’t prescribe a solution without understanding what the condition is.

DG: Are remote workplace situations a barrier to engagement, or can remote workplaces be an opportunity to improve engagement? And, if so, how?

BL: There are clearly challenges to maintaining the engagement of employees working remotely. However, while it may be a cliché that the flip side of challenge is opportunity, I think this cliché applies today. Organizations that take care of remote employees can actually boost engagement. Taking care means:

Providing strong and visible leadership. Leaders need to continue to be visible, even if not in person. Leaders also should manage goals, results and outcomes, not just attendance and activities. And effective leaders understand that employees working remotely need to balance their work and personal lives. According to one government leader: “We’ve had to drastically change. People who have kids need to take an hour off to put someone down for a nap or to make a peanut butter and jelly sandwich.” Leaders also communicate through multiple means (i.e., not just email or messaging), using telephone, web sites, blogs, intranet, Twitter, Facebook; and face-to-face communication platforms like Zoom, Teams, WebEx and Skype.

Continue to focus on training and development. It might be tempting to overlook employee development as we scramble to adapt to the COVID-19 workplace. But this would be a mistake. Managers, supervisors and employees should continue to focus on development, using options that don’t require in-person contact, including the explosion in online training.

Recognize accomplishments. Our Institute’s national survey has consistently found that a key driver of engagement is making sure that employees feel valued. This can be tough without physical proximity, but it’s important to recognize the contributions and accomplishments of employees working remotely, as well as the employees who continue to report to their work sites.

DG: Many people are suffering from “Zoom fatigue.” They’re just tired of communicating over the computer. Is there ever a danger of over-engagement?

BL: Over Zooming can be a problem, but is not the same as over-engaging. Our research, and the research of others, has shown that employee engagement is low, including in government. I don’t think we should worry about over-engagement, at least not yet.

But we should worry about over Zooming. As our Institute has emphasized, simply seeing employees at work, whether in person or via computer, is no guarantee that employees are being productive. In fact, too many video meetings may actually reduce productivity, Managers and supervisors need to move away from the need to simply see their employees at work. Instead, they should manage goals, products and outcomes; not activities, time and Zoom attendance. More focus on the former and less on the latter will improve productivity and minimize any Zoom fatigue. [Editor’s note: For more guidance on communication in a remote environment, read about Zoom Zombies, and/or register for The Performance Equation: Providing Feedback that Makes a DIfference.]

We’ll talk more with Mr. Lavigna about the latest trends in employee engagement in an upcoming FELTG Flash. [email protected]

OPM’s New Regs Clarify Who is Responsible for Douglas Factors Analysis

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By Deborah Hopkins, October 26, 2020

There is a lot going on in our country right now. The election is in just a week (though it feels like it’s been going on for years – and in some ways, it has) and the news cycle is packed with that, plus the ongoing pandemic.

In addition, the telework is continuing for many of you. Can you even remember the last time you actually saw your coworkers in person?

I’m sure you’re exhausted and frustrated and tired of 2020. And given that it’s almost November, it might be tempting to check out for the remainder of 2020, and hope that 2021 holds better things.

But wait!

You can’t check out. There is SO MUCH going on in the federal civil service, from changes that have gone into effect in the last few weeks, to changes that will be implemented within the next several, and your agency cannot afford to miss them.

One of the biggest happenings is the issuance of OPM’s regulations modifying 5 CFR Parts 315, 432 and 752, which go into effect November 15. These 199 pages [PDF] are packed full of information, some of it surprising and some of it unsurprising yet still significant. I’ll provide an overview of the biggest takeaways during a webinar on November 12, but today I wanted to share a portion that directly speaks to one of the most hotly-contested topics in the history of FELTG training: Who should do the Douglas factors assessment — the Proposing Official (PO) or the Deciding Official (DO)?

Take a look at the below addition to 5 CFR Part 752, which previously only had subparts (a) and (b):

§ 752.403 Standard for action and penalty determination.

(c) …The penalty for an instance of misconduct should be tailored to the facts and circumstances… Within the agency, a proposed penalty is in the sole and exclusive discretion of a proposing official, and a penalty decision is in the sole and exclusive discretion of the deciding official.

To some of you, that may seem like it’s nothing new. However, if you look at the discussion under 752.202, which also applies here, the emphasis is on an individual determination and assessment of each distinct case of employee misconduct. The discussion says, “there is no substitute for managers thinking independently and carefully about each incident as it arises, and, as appropriate, proposing or deciding the best penalty to fit the circumstance.” Subpart (d) also says that a minor indiscretion for one supervisor based on a particular set of facts can amount to a more serious offense under a different supervisor.

So, how does this answer the question about Douglas? Well, taken along with the context provided, each case is unique, and who better knows about all the details relating to the misconduct and its effect on the agency than the Proposing Official? And what better way to tailor the penalty “to the facts and circumstances” than having the PO do a full Douglas penalty analysis? We’ve been saying it for 20 years at FELTG, and we’ll be saying it for the next 20 years.

This language also speaks to advisors who might disagree with the PO’s proposed penalty or the DO’s ultimate decision, and might try to change their minds. The regulation clearly states the penalty is entirely up to the PO and DO. As advisors we may advise on an acceptable range of options, but that document is going to be signed by the person taking responsibility so it needs to match their analysis.

Stay tuned in the coming weeks as we discuss more takeaways from the regulations. Feel free to email Ask FELTG ([email protected]) if you have any questions. In the meantime, take care. [email protected]

And Now a Word With … Dr. Anthony Marchese, on Performance

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By Dan Gephart, October 6, 2020

Gourds, pumpkin spice, a slight nip in the air, falling leaves. It’s all a reminder for many supervisors that it’s time to start working on those end-of-the-year performance reviews. Many federal employees will be getting feedback on their performance for the first time since their last review. And that, FELTG Nation, is inexcusable.

Whether it’s anxiety, frustration, or confusion, you cannot afford to avoid regular, honest performance-related discussions with your employees any longer. Providing feedback effectively is a skill — one that every supervisor can and should develop.

FELTG Instructor Dr. Anthony MarcheseFELTG Instructor Anthony Marchese will present The Performance Equation: Providing Feedback That Makes a Difference on October 28 from 12:30 – 4 pm ET. I caught up with Tony, who besides teaching for FELTG is a consultant, author and former academic dean, to talk about performance feedback.

DG: Why is feedback so important?

AM: Feedback is essential for growth. It is embedded in some of our earliest experiences. It helps provide a map of meaning to help direc

t us toward desirable behavior. In other words, it helps us to understand where we are in relationship to where we could or should be. It helps reinforce positive behavior and offers insights into where we may need to adjust behavior that is incongruous with expectations.

DG: Does it always have to be formal?

AM: Definitely not! However, before we discuss delivery methods, we need to ensure that it is happening. In a recent study, Gallup reported that 50 percent of surveyed employees (from a variety of sectors) did not know what their managers expected of them on a daily basis. Forty-seven percent of respondents indicated that they receive feedback only a few times a year or less. If an employee consistently possesses that level of uncertainty further reinforced by an absence of performance conversations, it is unlikely that they will receive a positive performance review. It is a near impossibility that they will exceed expectations. Consider how the current pandemic may have further exacerbated ambiguity, uncertainty, and the frequency of performance conversations. We must do better.

DG: Speaking of the pandemic, a majority of federal employees are working from home now. What are some pitfalls for supervisors to avoid when providing feedback remotely?

AM: Try to avoid negative surprises. Let your employee know in advance what you’d like to discuss. Provide specific, self-introspective questions to help them prepare for the conversation by carefully considering their performance and be ready to discuss what to continue, discontinue, and how to do it. Also:

  • Try to avoid using a virtual feedback conversation to test out a new, unfamiliar technology. Video is always better. Make sure that you and your employee know how to use it. Remember, nonverbal cues are incredibly important and can be easily
  • missed when not meeting face-to-face or using video. Let them see you. Be sure to see them.
  • Try to make the feedback session an active, brainstorming experience. Rather than spending the time “telling,” consider a structure that encourages equal participation, reflection, and problem-solving. This energy helps mitigate the Zoom fatigue plaguing so many right now and also positions the supervisor as a collaborative partner in helping your employee be at their best.

DG: How do you provide feedback to essential workers who are so busy they don’t have time for a feedback session?

AM: If a supervisor is too busy to provide feedback, he or she is too busy to be a supervisor.

More than ever, it is important that each employee feels connected to her or his supervisor. In a world filled with uncertainty, anxiety, and exhaustion, supervisors who choose not to take the time to provide feedback perpetuate an already difficult situation.

Feedback can come in many forms. It is not limited to a 60-minute, sit-down session in an office. It can occur during a weekly one-on-one. It can occur via e-mail following a deliverable. It can be offered by colleagues (a 360 perspective is important). Right now is a great time to rethink how we provide feedback. For example, rather than a supervisor leading a session during which they “tell” their employee how they did, they may want to consider positioning the meeting as an inquiry opportunity. This helps promote individual ownership for performance. Supervisors should be curious. Ask questions of their employees like: How did you think the planning session went? What worked well? What would you change? Here is what I observed. What can we do together next time to ensure whatever a successful outcome would be?

Since most work-related communication has been interrupted/impacted by the pandemic, supervisors may want to reconsider how they leverage their one-on-ones, team meetings, and emails.

DG: What is the one thing every supervisor could do immediately to improve feedback?

AM: The most important thing is simply to do it. Don’t contribute to the 50 percent of employees who are unclear about what they should be doing. Here are a few other ideas to consider:

  • Conduct a self-assessment. Ask yourself: Do my employees know what I expect of them? How am I so sure?
  • Conduct a team assessment: Ask your employees (individually): Do you feel like you have what you need from me to perform your job well? What can I do/provide to ensure that you have what you need? What should I do more of/less of?
  • Performance feedback needs to consider both the “what” and the “how”. Many supervisors assume that once they provide feedback (especially constructive), their employees will know precisely how to change. This is often a false assumption. When providing feedback, discuss with your employee a strategy (with identified goals, resources, timelines, and accountability) to help support their efforts.

If you’d like to bring Dr. Marchese to your agency for training on feedback, communication or any leadership-related topic, email [email protected].

Harassment Investigation Challenge: Who is Telling the Truth?

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By Dan Gephart, September 29, 2020

If you’re a regular reader of Barbara Haga’s articles in our monthly newsletter (and if you’re not, what’s wrong with you?), you may have noticed a common thread weaved within her last two articles.

Sometimes, federal employees lie.

Earlier this month, Barbara told the tale of an FAA civil engineer who was asked point blank if she used her work computer “for unofficial personal reasons while on duty for any reason.” Her reply was a simple “no.” Unfortunately for the engineer, the agency had already compiled an Internet history of the computer in question and found more than 33,968 nonwork-related transactions on sites, such as Amazon, eBay, and Etsy. Further investigation revealed that the employee was actually running her Etsy business from her work computer.

A month earlier, Barbara wrote about an employee who denied sending inappropriate text messages, many of a racist nature, on her phone by replying “I do not admit to the validity of these messages.”

In both of these cases, the agency had one thing going for it – a lot of evidence.

But when you’re doing investigation of hostile work environment harassment, sometimes there isn’t much evidence, so you end up with the classic he said/she said situation. How do you determine credibility, especially when there is so much raw emotion involved? And how do you do it during a pandemic, when the interviews are being done remotely?

Next week, October 6-8, 2020, FELTG will present the virtual training Conducting Effective Harassment Investigations. On the third and final day of the seminar, FELTG instructor Meghan Droste will cover everything from interviews to writing the report, including a module on determining credibility.

First off, the EEOC has recognized that being able to see a witness is crucial to gauging credibility, so be sure that you have a reliable webcast platform like Zoom or Skype. Although you’re no longer in the same room, you should still be able to read demeanor and body language.

Here’s what you do: Start with easy questions. Monitor how the employee moves, including facial expressions. This sets a baseline for how the interviewee will react when telling the truth. Then start to toss in tougher questions. Look for a difference in reactions. Has the employee’s pitch or speech rate changed? What about eye contact? Are they fidgeting at all? Are their answers limiting details or are they adding more? Are they answering your questions with the same amount of certainty?

You can learn a lot from body language. Or, you may learn very little, because body language is a highly-contested area of credibility findings. Therefore, you can’t rely on just body language to make a determination. There are several other ways that truth, or more accurately, lies can be revealed.

Consider the following:

  • Detail. How specific was the witness’s testimony? Did the witness deny the allegations in detail or just generally? Did anyone leave out important or obvious information during the interview?
  • Corroboration/Conflict. Are the conflicts over minor or significant issues? Does the witness’s testimony contradict other testimony? Was the witness’s story consistent through the testimony or did it change on a second telling?
  • Plausibility. Which story make the most sense? Are the details in the testimony realistic?
  • Motive. Does the employee have a motive to lie about, exaggerate, or deny the incident? Do any of the witnesses have special loyalty to or a grudge against anyone involved in the incident?
  • Past record. Have there been any prior incidents between the complaining and accused employee? Does the accused have a history of this type of misconduct?
  • Demeanor. Was anybody’s reaction unusual, as compared to their typical demeanor?

Again, you can’t rely on any one of these factors when determining credibility. But taken as a whole, you should be able to develop some sense of who is telling the truth. [email protected]

Agency Concerned About Telework as Reasonable Accommodation Request: Should It Request More Medical Information?

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By Deborah Hopkins, Ann Boehm, and Bob Woods, September 1, 2020

Here’s a hypothetical reasonable accommodation case to consider:

An employee requests telework due to a medical condition, specifically because of the side effects of the medication being taken for the medical condition. The medical information provided by the health care provider states that the medication being taken causes sleepiness and precludes the employee from driving. Can additional clarification be requested from the employee’s healthcare provider to ensure that the medication being taken by the employee will not affect his ability to perform his essential functions, specifically to handle potentially private information, including personally identifiable information (PII)?

We sure love hypotheticals. Because FELTG is a training company, we can’t give specific legal advice about this scenario. But your authors got together (well, virtually anyway) to discuss some things the agency should probably consider.

 

The telework request

Sometimes, folks overthink these situations too much. In this time of pandemic, thousands more employees are working from home. It’s still the same work with the same duties and responsibilities, just in a different environment. The employee is responsible for properly safeguarding PII at work, so that’s still a requirement at home. Is the agency allowing other similar employees to work from home? If so, how do THEY safeguard PII? If this employee fails to safeguard PII, the agency should deal with it when it occurs and take appropriate action to hold the employee accountable.

In cases like the hypothetical above, supervisors are often concerned that they can’t keep an eye on the employee to make sure they’re getting their work done and aren’t malingering. There are ways to deal with such concerns. For example, while teleworking, the supervisor can assign projects with specific deadlines or require periodic updates by phone or email. They can also have Zoom or Skype meetings, etc. They just need to think through how they monitor work while in the office and then try to replicate that as well as possible in the virtual environment. If the employee’s production decreases or the employee doesn’t respond in a timely fashion to phone and/or email, then the supervisor just deals with that like they should in the normal workplace (i.e., follow FELTG’s performance cases outline to hold the employee accountable).

The medical request

We know from EEOC cases that assuming or speculating that a certain disability will result in a particular behavior, without any evidence or history of such behavior, can get agencies in trouble. See, e.g., Matilde M. v. SSA, EEOC Appeal No. 0120140147 (Jan.17, 2017); Smith v. Navy, EEOC Appeal No. 01A40794 (June 8, 2006); Lamb v. SSA, EEOC Appeal No. 0120103232 (Mar. 21, 2012).

In our hypothetical, drowsiness as it relates to driving is the reason for the telework reasonable accommodation request. An agency should be very careful not to read into something for which there is no evidence. Drowsiness or sleepiness does not automatically suggest other issues. (In fact, all of your authors have been groggy on the job a time or two.) Grogginess does not automatically mean an employee cannot do the job, and without a direct link to the essential functions – for example, operating machinery or driving – it can be risky to assume one cannot. Lots of medications warn against driving, but that’s a different cognitive need than getting certain types of work done.

Agencies can ask for medical information to substantiate the need for accommodation, and to help understand the functional limitations. If the agency in the hypothetical above accepted the medical information as written (employee needs to telework because they can’t drive due to the effects of medication), granted telework, and the accommodation is working and there are no problems with the employee’s performance or conduct, then why would the agency need additional medical information about the performance of essential functions based on the driving restriction alone?

The bottom line

Telework can be an effective and reasonable accommodation. Whether it’s being permitted as an accommodation or just as a workplace flexibility, supervisors need to determine how they are going to assign and monitor work and how the teleworker will maintain security and PII.

Remember, it’s the same work, just a different location. As for requesting medical information regarding an accommodation, stay focused on the critical elements of the job. Remember, an accommodation is provided to enable the employee to perform the essential elements of the job. If necessary, the employer may request the medical practitioner to answer the following:

  • Nature, severity, and duration of disability;
  • Explanation of impact of disability on and off the job;
  • Extent to which impairment(s) limit ability to perform functions of job;
  • Estimated date of full or partial recovery;
  • Medical professional’s assessment of individual’s ability to successfully perform essential functions of position;
  • Explanation as to how the particular accommodation will assist individual in performing essential functions of position.

We’ll be discussing challenges related to unseen disabilities in more detail on September 8 during the virtual training program Accommodating and Understanding Employees with Hidden Disabilities, and we also have an entire virtual class dedicated to handling employee medical information during Absence, Leave Abuse & Medical Issues Week, September 28-October 2. If reasonable accommodation requests are something you deal with, you will definitely want to join us. [email protected]

And Now a Word With … Dennis Dean Kirk

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By Dan Gephart, FELTG Training Director, August 11, 2020

I really had hoped and expected that when we conducted an interview with Dennis Dean Kirk, it would be to discuss his new role as Chairman of the Merit Systems Protection Board. As the FELTG Nation knows, President Trump nominated Mr. Kirk more than two years ago for one of the three open spots on the Board. Those three spots remain open because the Senate has not scheduled a vote, and the likelihood of us getting an actual Board anytime soon is, to quote the person who made the nomination: #Sad!

But Mr. Kirk isn’t just sitting around waiting to hear from the Senate. Since being named the Office of Personnel Management’s Associate Director of Employee Services earlier this year, Mr. Kirk has dived deep into his role of developing and administering policy on issues as wide ranging as pay, labor relations, performance management, and more. And now Mr. Kirk and his Employee Services team are focused on implementing President Trump’s executive orders and ensuring that all federal supervisors are appropriately “equipped to address performance and conduct issues.”

As you can imagine, the FELTG team is very interested in Mr. Kirk’s current work. We’ve been providing specific useful guidance on the aforementioned EOs in training since the day after they were signed. And equipping supervisors to address performance and conduct, well that’s kind of our thing. So we’re thrilled to see OPM prioritizing supervisory training and we thought it important that you knew what was going on. So we reached out to OPM and sent our questions to Mr. Kirk. What follows is that Q&A.

DG: Could you tell us briefly about the team you have in place at Employee Services and the priorities you have been working on?

DDK: Our team is a mix of highly qualified and seasoned civil servants and senior political appointees who are experts in their fields. Appointees help lead the department and ensure that our priorities are aligned with the Trump Administration’s policy objectives.

Our top priority is assisting agencies in implementing President Trump’s three workforce Executive Orders on employee removals, collective bargaining, and official time. These Executive Orders have tasked agencies to renegotiate collective bargaining agreements to bring them in line with the provisions of the Executive Orders, understand and record the amount of official time that is being billed to the taxpayers within their agency, and rein in extra-statutory impediments to maintaining accountability within their organizations. As a result of the data collected from these efforts, OPM is creating reports on the use of official time, collecting and publishing collective bargaining agreements, developing model collecting bargaining agreement language with the help of the Labor Relations Group, and creating training materials to help managers understand how and when to take adverse actions.

Over the past four decades, the cost of higher education has risen dramatically. In 1978, the average expense of one academic year at a four-year in-state public college was $8,250 in inflation-adjusted U.S. dollars. Today, one year at the same college would cost $21,370 on average. This trend makes the widespread reliance on educational requirements by employers an ever-steeper hurdle to gainful employment for many Americans. For example, among U.S. workers over the age of 25, 26 percent of blacks – as compared to 40 percent of whites – have at least a bachelor’s degree.

President Trump believes that regardless of whether an individual had the ability to pay for a college education, they should have an opportunity to demonstrate whether they have the capacity to perform the duties of a job. The Office of Personnel Management is also implementing the President’s Executive Order on Modernizing and Reforming the Assessment and Hiring of Federal Job Candidates issued this summer to open up the Federal hiring process to job seekers with a much wider set of experiences. This Executive Order requires that agencies develop and offer competency-based assessments – as distinct from self-assessments – for every job advertised in the competitive service. It also specifies that, unless a certain level of education is required for licensure in a certain field, educational attainment cannot be used to bar someone from taking an assessment.

We are setting up listening sessions between private businesses – both large and small – and Acting Director Michael Rigas and our team at OPM to learn from the innovative ways these companies are identifying talent using assessments rather than relying on college degrees. OPM is also supporting the Federal HR community to help them meet the demands of the Executive Order and reviewing our guidelines and policies to assure that education is not used as a barrier to entry.

DG: OPM shared an employee engagement toolkit with agencies earlier this year. What was the goal of that toolkit?

DDK: In October of 2018, OPM issued government-wide guidance and reporting requirements on two President’s Management Agenda milestones. To support agencies with achieving these milestones, OPM developed the employee engagement toolkit for supervisors.The two milestones were the “Workforce of the 21st Century” Cross-Agency Priority Goal, Subgoal 1:”

  1. All major components/bureaus will identify its bottom 20% on the 2018 Federal Employee Viewpoint Survey (FEVS) Employee Engagement Index (EEI) and target a 20% improvement in those units by the end of 2020.
  2. All agencies will have clear standard operating procedures for disseminating the Federal Employee Viewpoint Survey (FEVS) data to all organizational levels

DG: Have you received any feedback on the toolkit?

DDK: OPM has received positive comments from agencies expressing the value of the toolkit. Several agencies have informed OPM they have taken steps to deploy the toolkit within their agency, and they have offered webinars to highlight the toolkit and how to interpret and use FEVS results to improve employee engagement.

DG: While there has been improvement, a majority of employees still responded negatively to the statement on OPM’s Federal Employee Viewpoint Survey: “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve.” Why do you think this is a perennial issue and what can be done to fix it?

DDK: This is why we are making the implementation of the President’s three Executive Orders on accountability and labor relations a top priority. When President Donald Trump issued three executive orders that made it easier to fire poorly performing government employees, the backlash from public-sector unions was fierce. Union leaders did not like it—one called it an “assault on federal employees.” But a poll following the signature of these Executive Orders found that the majority of government workers— 51 percent —support the Administration’s efforts.

Moreover, only 24 percent of Federal employees oppose the recent executive orders, and another quarter are unsure. Some federal employees no doubt take advantage of their insulation from accountability, but most civil servants are hard-working and dedicated — a fact attested to by the 70 percent customer satisfaction rate among those who receive some federal service. The diligent federal workers must pick up the slack for those who do not do their share, only to sometimes be denied opportunities for advancement by the dead weight above them. And, as anyone who has worked in an office environment knows, unmotivated and unruly co-workers can take a heavy toll on morale. So, although a few bad apples may prefer to keep the status quo, it is not surprising most federal employees welcome these provisions of the President’s Executive Orders.

DG: What do you see as the main reason some training is not effective? 

DDK: Over the years and through extensive research, OPM has learned the value of shifting from traditional classroom-based learning to experiential and social learning activities. With experiential and social learning activities, approximately 70 percent of learning takes place on-the-job; 20 percent of learning results from meaningful relationships and coaching; and 10 percent of learning occurs through formal classroom training. OPM’s research also suggests that this approach to employee training is more situated in the context of an employee’s work, providing cost savings opportunities to build and demonstrate the competencies needed for success.

DG: What is the skill you’d most like to see supervisors improve upon over the next year?

DDK: OPM supports Federal agencies to ensure all supervisors develop critical leadership competencies within the first year of appointment and are appropriately trained on performance management, as well as addressing performance and conduct issues.

Additionally, OPM is committed to providing supervisors with best practices, guidance, training, and forums with a focus on employee experience, performance, and continual learning. We also emphasize the importance of succession planning in support of talent management from entry to leadership level.

DG: What is the most critical skill you’d like to see HR improve upon over the next year?

DDK: OPM encourages HR professionals to shift their focus from the traditional functional role to more of a strategic partner within their organization. The Federal Government continually faces unique challenges to meet its mission to effectively serve the American people. HR professionals can support Federal leaders to improve the agility of the workforce, adapt to change, and develop workforce solutions to overcome these challenges.

Editor’s note: FELTG’s flagship course UnCivil Servant: Holding Employees Accountable for Performance and Conduct, is just one of our many training programs that empower federal supervisors to confidently and effectively take legally defensible actions to address poor performance and misconduct, and comply with OPM’s 5 CFR 412.202(b) requirements. We can provide this course specifically for your agency. And we’ll be teaching UnCivil Servant: Holding Employees Accountable for Performance and Conduct virtually as an open enrollment over two half-days on September 9-10. [email protected]