We Bet You Never Thought of Doing This Simple Thing

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By William Wiley, April 10, 2018

Last week, we encouraged you to think outside the box a bit when it comes to a non-disciplinary removal. We described how HHS has come up with an option called a Terminal Detail. Instead of initiating a removal action, in the right situation the supervisor will offer to fund the employee’s salary for the employee to work in a different organization for several months. That way, the new organization can try out the employee without having to pay his salary, and offer the employee a permanent position at the end of the detail if it has an opening in which he can perform. The benefit to the “losing” supervisor is that he a) doesn’t have to go through the resource-intense processing of firing the guy, b) relief is immediate, and c) the employee has to agree not to return at the end of the detail as part of the contract.

Several readers commented that this was a TERRIFIC idea and could work in their organizations to avoid removals. On the other hand, a few determined just-say-no readers thought this option to be either unwise or illegal, or both.

Wanting to provide more fodder for outside-the-box thought, here’s another “crazy” option that came to me in the dark of the night while I was lying in bed sleepless, worrying about the potential loss of our civil service due to nay-sayers. If you think that a Terminal Detail is a whack-a-doodle idea, wait until you catch a load of this one.

But, first, a couple of facts to work with:

  1. A common mistake that agencies make when firing an employee is having the Deciding Official (DO) say something in her decision memo that is different from what the proposing Official (PO, usually a subordinate to the DO) has said in his Proposal Notice. Allowing the DO to consider a fact of which the employee was not notified in the Proposal Notice is almost always a violation of due process. As a due process violation is per se harmful, the agency automatically loses, and the employee and his lawyer get a whole big bucket of money, with the employee entitled to reinstatement to the position from which he was unfairly fired. If you don’t already know that this is a HUGE problem for agencies, you need to read more MSPB reversals of removals. It may be THE most common reason we lose appeals.
  2. The Civil Service Reform Act of 1978 set up the removal procedures 40 years ago this year. Although most agencies use two officials to fire an employee – a PO and a separate, superior DO – the law has never required that two individuals be involved in deciding a misconduct removal (two are required by law, in comparison, in a performance removal). For whatever reasons, most all agencies have a policy that says that two management officials will be involved in a misconduct removal, but this has never been a legal requirement.

When teaching the basics in our famous FELTG MSPB Law Week seminar (next offered in Denver June 4-8) , we strongly suggest that a way around this problem is to a) have the PO do an extensive evaluation of the Douglas Factors as an attachment to the Proposal Notice, then b) have the DO simply adopt that analysis, assuming of course that complete adoption is actually what the DO is doing. This avoids the mistake that agencies sometimes make of having the DO complete a separate fulsome Douglas Factor analysis as part of the decision memo. Having the DO do a separate analysis is a great way to include additional facts into the case, thereby violating the employee’s due process rights, and causing reversal of the removal on appeal.

“But, Bill. What if the DO disagrees with the PO? What if the DO views the Douglas Factors differently from the PO or knows things about the employee that he wants to rely on in making the removal decision, but are not in the PO’s Douglas factor worksheet? What then?”

For years, our response has been to take the safety route. Have the DO send the employee a memo that says how he views things differently, and then give the employee at least seven days (or whatever your local CBA or policy says) to provide a response to the new information. Legally, this is nice and tidy, but practically, it may delay the removal beyond 30 days. And nobody wants to delay a removal decision more than necessary.

And then it dawned on me (literally “dawned” as the sun was starting to rise over my San Francisco home as the idea came to me a couple of mornings ago):

Why not have the PO and the DO collaborate on the Douglas Factor assessment attached to the Proposal Notice prior to it being given to the employee?

We’ve known for 40 years that it is not a violation of due process to have the same individual be both the PO and the DO. We know that the heart of due process is that the agency makes known to the employee everything that’s being thought about regarding the proposal to remove him. And we know that MSPB does not have a problem with the DO being involved in the proceedings leading up to the proposed removal. Lange v. DoJ, 119 MSPR 625 (2013). Why not simply have this pre-Notice joint-drafting of the Douglas Factor analysis done by the DO and PO, and of course with notice to the employee of its joint authorship? We satisfy due process while simultaneously reducing the likelihood that the DO will want to consider something not in the Proposal Notice. Yes, it takes more time up front to get a document created by two authors rather than one, but the pay-off is significant: a reduction in post-Notice time and a better chance that we will not inadvertently violate the employee’s due process rights.

Congress, OPM, and the White House are looking at ways to change the civil service laws. Smart usage of the laws we already have will reduce the need for drastic change. [email protected]

Another Way to Avoid Nasty Litigation

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By William Wiley, April 3, 2018

Experienced practitioners know that it’s almost always better to avoid litigating a termination case than going to a hearing and defending a removal action. That’s because a) litigation is time- consuming and expensive, and b) even if you have a good case, there’s always a chance you will lose. Last year, agencies lost about one-in-four to one-in-five removals that were appealed to MSPB. Discovery before the Board can involve thousands of pages of documents and several tedious depositions of senior managers. Why incur that risk and expense if you can get rid of the guy otherwise?

The term “discipline alternatives” was derived a few years ago to describe this class of options for supervisors who have a problem employee. The most common one of these is a “Last Rites” meeting in which we try to talk the employee into voluntarily quitting in exchange for some benefit. “Hey, Bill, if you’ll quit, I’ll let you work at home without any real duties other than finding yourself another job. Let’s say two months, and your dress code is your pajamas.” Write it up, get the employee to sign a contract promising to be gone, and you’ve done yourself and the country a great favor.

Another option is the similarly-named “Last Chance” agreement. In this case, you agree not to implement a decision to fire someone if he’ll promise to be good for the next couple of years. If he survives the agreement period, the removal goes away. If he screws up before the period is over, it’s an immediate removal with no appeal rights and no Douglas factors. If either of these “Lasts” is new to you, sign up for our training. Agencies that know what they’re doing have been using these for decades to avoid litigation and still remove bad employees from the federal workplace.

These two options are well-established in the case law. Easy to research, easy to see how effective they can be. However, not long ago, we ran across an option being used at HHS that we think can be very useful, in the right situation, and that doesn’t lend itself to case law research. As everybody knows, the sub-agencies within HHS – FDA, NIH, and CDC, among others – do a lot of research. That means that there are a lot of employees who work in labs and on projects doing specialized technical work for extended periods of time. When it develops that an employee is no longer meeting performance standards for a critical element, HHS management uses PIPs (now known as ODAPs for “Opportunity to Demonstrate Acceptable Performance” to emphasize that it is not an “improvement” period”), last rites and last chance agreements, just like everybody else.

However, they’ve also come up with another option that in the right situation is well worth consideration. It’s called a “Terminal Detail.” Employees in a research environment sometimes just don’t keep up with the science in a particular lab and are therefore not performing acceptably. Otherwise, they have decent work habits and might fit in somewhere else. As an alternative to implementing formal procedures, the supervisor explains the situation to the employee and invites the employee to find another workplace in the organization that could use some help and is willing to try out the employee. If the employee finds an alternative position, the current supervisor offers to continue to pay the employee’s salary from his organizational funding for six months or so while the individual works in the other component. The receiving organization gets free labor for the period and also gets to evaluate whether it has a permanent place for the employee long-term.

If the employee works out in the new location, and is picked up as a permanent employee, the personnel action is a reassignment, and everybody wins. However, the deal that’s struck requires the employee to understand that if he does not have other employment by the end of the Terminal Detail, he must leave voluntarily. He cannot return to his original job, and either quits or retires, whichever option is available to him. The implementing agreement waives the individual’s rights to file an appeal, grievance, or complaint regarding anything that leads up to the detail, so there’s no adjudication related to the action.

The price to the supervisor is six months (or so) salary, so this is not a freebie approach. However, many supervisors who have been through a removal action and appeal to MSPB would say that it is a reasonable price to pay to have the employee out of the workplace immediately, with no chance of being reversed on appeal. As for the employee, he is faced with either an involuntary removal effective within 30 days or so, or the alternative of trying to prove himself to another supervisor doing different work. The choice is not right for everyone, but when it’s a good fit, it can be life-changing for the better.

Keep your options open. Stay flexible and creative. Yes, our business is firing people. However, if you can use other options to get you to the same place without all the lawyer-stuff, you almost always come out ahead in the end. [email protected]

The Backwards Approach to Civil Service Law

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By William Wiley, March 27, 2018

In one week, I heard some variation of this unfortunate concept three times:

What gives you the authority to do that?

An alternative of this is, “Where does it say we can do that?” I hear this phrase from attorneys, HR specialists, and supervisors, each of whom is trying to decide what to do in a particular employment law situation. For example, in one case an agency used one of its airplanes to observe the backyard of an employee who was suspected of growing marijuana there. “What gives the agency the authority to do that?” In another, the supervisor had contacted the local police and asked them to do a “welfare check” to see if a missing employee was injured or otherwise in trouble. “How do we have the right to call the police?” In another, a supervisor thought he saw a subordinate looking at porn on a personal laptop. When confronted, the employee said he was working on agency business. “Where is the agency policy that allows the supervisor to tell the employee to show him the computer screen?”

Folks, that’s exactly the kind of backwards, bureaucratic mindset that freezes supervisors and makes the agency appear to be impotent relative to holding employees accountable. The question should not be, “Where does it say we can do that?”, but rather, “Where does it say we cannot do that?”

Here’s how we know that this is the better approach:

  • 5 USC 301-302 gives the President the authority to make personnel decisions relative to the Executive Branch and to delegate that authority to subordinate management officials. Therefore, agency supervisors have the authority to run their workplace on behalf of the President.
  • Supervisors can take lawful actions with employees as long as there is a nexus (e.g., a business-related reason) for the action. The reverse, of course, is that if there is no nexus, the supervisor cannot take the action. The Lloyd-Lafollette Act of 1912 called this basing the action on the “efficiency of the service.”
  • Therefore, unless there is a law that says a supervisor cannot do something, as long as the motivation for the action is related to a bona fide business reason, the supervisor can do it.

Does an agency have a business reason for determining whether its employees are violating its marijuana policy? Sure, that’s why they have a policy, to ensure that employees are not violating federal law. How about a missing employee? Does a supervisor have a business reason for being concerned about the safety of an employee who does not show up for work? Of course. As members of society we all have that concern. As an employer, that concern is enhanced by the need to have someone at work doing the job. How about porn in a federal workplace on government time? Can a supervisor take steps to make sure that doesn’t occur? Lordy, I would hope so. If not, we have a drastically different federal workplace than the one our citizens expect (and that I used to be part of).

Of course, there are legal limits to what we can do. If that welfare check was motivated by a desire to harass an employee who had filed a bunch of EEO complaints, that’s illegal. The marijuana fly-over and the laptop viewing cannot run afoul of the Constitutional 4th amendment protections against the government conducting an “unreasonable search.” (They do not, by the way, as the fly-over is a plain-view observation and the personal laptop is fair game for the supervisor because the employee claimed to be doing government work on it.)

The civil service is routinely beat up by politicians and the media for letting bad things happen without our doing anything about it; e.g., workplace sexual harassment, employees on months of paid leave, and inefficient/rude service providers. We even had an OPM director years ago who complained about poorly dressed federal employees, saying that the government does not have a dress code; therefore, she could do nothing about workplace slovenliness. OF COURSE, we have a dress code. It’s what the supervisor says is appropriate for the work being assigned.

The attitude that something specific has to give us authority to act before we can act contributes mightily to the viewpoint that our civil service is not working. Instead of looking for the specific authority to do something, look to see if there’s something that says you cannot. In my experience, you will hardly ever find anything. [email protected]

Never Send to Know for Whom the Bell Tolls, Poopsie …

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By William Wiley, March 20, 2018

Oh, there’s just so much in the mainstream media these days about our business of civil service law. Sometimes we can go months without an article being published for general consumption about federal employees and their rights. These days, we’re everywhere. And if you care about your own personal future, maybe you’d better read some of those articles verrrry closely. For example:

Andrew McCabe. As most of the world must know by now, McCabe was the deputy director of the FBI until he was fired last week, just over 24 hours before his birthday that would have made him old enough to receive a law enforcement officer enhanced retirement from the federal government. If you’re like most federal employees, you probably have the date marked somewhere that is the earliest date you will have both age and years of service to claim a life-long pension for your work, including till-death-guaranteed access to reasonable health insurance, a significant rarity in the United States these days. Well, go dig up that calendar. Look at the date you have calculated. Now think what the rest of your life would be like after that, if the day before that date, you were fired. Based just on your boss’s opinion, without an appeal right to a neutral institution like the US Merit Systems Protection Board.

For our purposes, it doesn’t really matter what McCabe did that resulted in his removal. Good guy or bad guy, until last week, he was a career federal employee, just like most of you readers. He wasn’t some political flake, appointed from the private sector for some political reason, with no real commitment to the civil service and no real expectation of continued employment. No, he was an individual just like you, who filled out an SF-171 to get his first job, competed for promotions, and underwent the annual embarrassment of a stupid performance appraisal that meant essentially nothing, but which empowered him to continue to do his job of providing service to the American people. He may have made mistakes toward the end of his career, but nobody died because of them. From what I read in the media, he arguably might simply have been mistaken about some of the things he allegedly did. Love him or hate him (and we take no FELTG position on your emotions), he was just like you in the sense of trying to do a decent job for a quarter of a century with the expectation of a government retirement annuity at the end of things, and now he doesn’t have that. By a day. With no appeal. Like it or not, this is how the FBI’s system works.

Department of Education and AFGE.  Unless you’re an inside-the-Beltway, labor-law-weenie (as we are proud to be at FELTG), this one might have slipped below your radar. Education and AFGE had been slogging along trying to negotiate a new labor-management agreement for about a year, making little if any progress. Nothing too unusual there. Some federal agencies and unions spend YEARS negotiating a new contract. So, the agency negotiators notified the union that they had a contract that they planned to implement if negotiations did not progress further, gave the union a time frame to respond, and when (according to the agency) there was no response, management implemented its version of a collective bargaining agreement.

Talk about hitting the fan. I’m still cleaning off the inside of my labor law news feed. All that cool stuff in the old labor agreement was gone: employee “rights,” including those addressing workplace health and safety, telework, and alternative work schedules, provisions on workplace discrimination, performance appraisals, compensation, child care and training were all deleted and replaced with nothing. If union representatives now want official time to represent employees in grievances and Weingarten meetings, they can do it on LWOP, not paid time as in the past. Need a union office space to discuss things or send an email? Better find a quiet corner in a hallway from which you can access a Wi-Fi hotspot on your personal smart phone.

Every union official I read about complained that the agency had somehow shoved the new contract down their throats, taking away employee and union rights Congress had intended. However, every practitioner who has attended FETG’s fabulous FLRA Law Week seminar who read about this scenario knew that they were seeing the Civil Service Reform Act playing out just the way it was written back in 1978:

  1. Management notifies the Union of an intended change to employee working conditions.
  2. Upon demand by the Union, Management enters into bargaining regarding those parts of the change that are negotiable.
  3. If Management and the Union cannot reach agreement (i.e., reach an impasse), Management notifies the Union of its final offer.
  4. If the Union does not respond by initiating the impasse resolution procedures provided for by law, Management has the right to implement the change without further bargaining.

We may think it’s terrible that the employees at Education lost the flexibility of alternative work schedules or that the AFGE reps now lose pay whenever they perform most representational duties. But those things are not Congressionally-mandated rights; they are the fruits of collective bargaining, sometimes won and sometimes lost. There may be good arguments that the union did not waive its right to the impasses procedures. If so, those arguments will be resolved through the unfair labor practice charge that AFGE has filed against Education. Like it or not, this is how the labor negotiations system works.

DVA.  Last summer, Congress created a law that allows DVA to fire employees with no more proof than a grain more than a scintilla (i.e., substantial evidence). In addition, unlike most all other agencies, DVA no longer has to defend deciding to fire someone rather than just suspending or reprimanding them. If the supervisor can prove that the employee engaged in a single act of misconduct (e.g., arrived tardy one day), he can be fired, even if he has worked for the government 30 years with no prior discipline and is an otherwise outstanding employee. In the language of civil service law, that means that there’s no penalty mitigation authority at MSPB or in arbitration and thereby no Douglas Factor analysis required.

So, what was in the papers last week? Congressmen on both sides exclaiming that they didn’t know that DVA would use these new authorities to remove housekeepers, veterans, and poor performers without necessarily giving them a chance to get better. Well, Congress. If you didn’t want DVA to do this stuff, why did you pass a law that specifically allows for them to do it? Why did the President say in his State of the Union address that this new DVA firing procedure should be applied to the entire federal government? Like it or not, this is how the DVA system that you created works.

Depending on your view of the federal workplace, you may be thinking that these are wonderful aspects of the civil service; that career individuals can be fired easily and that unions have to bargain rather than be provided benefits by legal right. Here at FELTG, we’re not trying to push your civil service protections in one direction or the other. That’s an effort worthy of a much higher pay grade. What we are suggesting is that before you break out the champagne, go look in the mirror. Mentally age yourself to what you think you will look like when that retirement date on your calendar finally arrives. Now picture that person standing in line to apply to work at Home Depot or CVS, two companies who have special programs to hire old coots individuals approaching their “Golden Years.” Some people might think that a cushy civil service job is for life, but now you know better. [email protected]

An Act of Smiling Insubordination

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By William Wiley, March 6, 2018

We get such good questions here at FELTG (because our readers are so smart, hardworking, and good looking). This one brought a big old smile to our faces:

Dear FELTG-Funny-People,

I’ve mentioned some of the topics covered in your newsletter to my boss, specifically the one about ordering an employee to smile and participate in meetings.  His perspective is that this would never work “in the real world.”  My perspective on his comment is that our agency solicitors wouldn’t support such an order or recommendation for removal.

Sad in Seattle

And our ever-thoughtful FELTG response:

Dear Sad-

Thank you for your nice note. It’s very kind of you to take the time to comment on one of our silly articles.

As for whether MSPB would uphold a removal for a failure to participate in meetings or smile, our job is to say what MSPB has done in the past so that we can predict what we can do in the future. And they have never said that this sort of misconduct (insubordination) would not support a removal. Our job is not to have an opinion on what should be done, but instead what can be done. That is my real world, and with all due respect, that is the real world of your supervisor as well as that of your solicitor.

We don’t need to guess at what MSPB would do. We just have to look and see what they’ve done in the past. When we do that, we find ZERO cases in which the Board has said that an employee is free to disregard a job-related order from a supervisor. In 40 years. Remember, I was the Chief Counsel to the Chairman at MSPB through most of the ’90s. I know this stuff. It is easy to imagine a job in which attending meetings would be job-related. Even smiling can be a job requirement; e.g., a supervisor might want employees who contact the public to smile for the benefit of presenting a better image of the agency. Your boss and your solicitor may not know this, but that doesn’t make them correct. Instead, it makes them uninformed.

Best of luck.

This is an important matter, not so much because we all want more smiling civil servants, but because it highlights a bedrock principle of the federal workplace. Supervisors get to decide what work is going to get done. Not some judge or political appointee on some board; the decision goes to front line supervisors. There are three and only three requirements for a supervisor’s order to be enforceable through discipline:

  1. There must be a nexus (relationship) between the order and the work of the agency,
  2. The order itself must not violate a law or require the employee to violate a law, and
  3. The order must be do-able (attainable).

Let’s say that you supervise a public contact Federal employee, perhaps a hypothetical screener for TSA. Your Customer Service surveys show that many members of the public who are screened by your employees find them to be gruff, uncaring, and rude (this is all hypothetical, of course). You decide that ordering your employees to smile might reduce the public’s negative perception of your crew. If you decide to order your employees to smile:

  1. There is a nexus between you order and the work of the agency,
  2. There is no law against smiling, and
  3. It is possible for employees to smile.

That’s all it takes. If Mr. Grumpy intentionally refuses your order for whatever reasons, you can reprimand him for insubordination. If he commits a second offense, you can suspend him, and if he commits another offense after he serves the suspension, you have the authority to consider firing him. You need not tolerate an insubordinate employee indefinitely.

“But, Bill. Won’t a judge overturn the removal on appeal?” Nope. The Board has long found fault with judges who insert themselves into the decision process regarding what work should be done. Supervisors decide what work should be done, enforceable through removal, if necessary. Even if a judge would never order her employees to smile and thinks it silly that any federal supervisor would give a smile-order, the judge has no authority to set aside the order. All she can do is review the order against the above three criteria, evaluate the penalty where she must give heavy weight to the repetitive intentional nature of the insubordination, and uphold the removal. If she did not, she would be affirming the power of federal employees to refuse to obey a supervisor’s order, and that’s just not going to happen. She cannot substitute her judgment relative to the wisdom of the order for that of the supervisor.

Tell employees what you want them to do, even if it’s something seemingly as minor as smiling. Apply progressive discipline to them when they don’t. Remove them if they become a three-striker. People can’t be forced to do what their supervisor tells them to do, but if they don’t, the supervisor has the authority to remove them from the civil service.

Remember that the next time your boss tells you to, “Have a nice day.” Better smile when he says that. [email protected]

It Can Be Bad; It Can Be Good

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By William Wiley, February 27, 2018

We love our questioners. Recently, we got an inquiry regarding an article written by one of our favorite authors. Here’s our response:

Dear Employment Law Gurus,

I read this article from Government Executive this morning. I would love to know your opinion of the premise of the article, basically it is too hard to fire federal employees, and the scenario the author provides.

http://www.govexec.com/excellence/management-matters/2018/02/low-rate-firing-government-employees-not-positive-sign/145763/?oref=govexec_today_nl

Thank you.

And here’s our guru-like response:

Thanks for your query. These are exactly the sorts of misunderstandings we love to address.

The author has expanded the scenario to make a valid point. As we have taught in our classes for years and provide as part of our consulting services, he is implementing, as is typical in many agencies, more actions than required by law. An FELTG-Certified practitioner would never do these things.

His list and our alternative:

Employee’s supervisor looks the other way First mistake. We teach supervisors to act immediately upon seeing misconduct.

 
Oral counseling Not required. Lehnerd v. OPM, 55 MSPR 170 (1992)

 
Written counseling   Not required and generally a bad idea because the employee will claim reprisal.

 
Written admonishment        Not required; potential reprisal claim same as above.

 
Reprimand Yes! Finally, the supervisor does what we teach should be done on day one.

 
Short suspension Can do. However, we teach to bargain with the employee to accept a Reprimand in Lieu of Suspension. No grievance that way.

 
15-day suspension Never! Why do something the employee can appeal to MSPB? Besides, unnecessary and of unproven value.

 
Proposed removal Yes! Should have been done after the Reprimand in Lieu of Suspension.

 
Injury after removal proposed Not in the FELTG world. We put the employee on Notice Leave so he is not in the workplace. No workers’ comp 45 days there.

 
Demands to be retrained     No entitlement to be retrained.

 
Reassigned Should have issued the decision to remove that was proposed earlier.

 

I know and respect this author. His scenario does indeed happen way too often. However, trained individuals know how keep this from happening:

  1. Reprimand,
  2. Reprimand in Lieu of Suspension,
  3. Removal.

Yes, appeals, grievances, complaints, and ULPs happen, but that’s the price we pay for a protected civil service. If you know what you’re doing, you can keep them down to a minimum, and always win them. As we’ve been screaming at the tops of our little FELTG-voices for nearly 20 years, it’s not the system as much as it is a lack of people who understand the system that’s the problem.

Come to our training. Learn the program. Be a Systems Superstar. We love this stuff. [email protected]

 

Another Congressional Tiny Little Foray into the World of Civil Service Law

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By William Wiley, February 20, 2018

Each year, the National Defense Authorization Act turns out to be a great piece of legislation into which members of Congress can stick things that have nothing to do with the nation’s defense. The Act for fiscal year 2018, HR 2810-335, is no exception. Dig through many pages in the bill of this and that, and you’ll find the following tidbit:

Sec. 1097(b)(5), INFORMATION ON APPEAL RIGHTS. —

(A) IN GENERAL. —Any notice provided to an employee under section 7503(b)(1), section 7513(b)(1), or section 7543(b)(1) of title 5, United States Code, shall include detailed information with respect to—

i. The right of the employee to appeal an action brought under the applicable section;

ii. The forums in which the employee may file an appeal described in clause (i); and

iii. Any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file an appeal.

(B) DEVELOPMENT OF INFORMATION. —The information described in subparagraph (A) shall be developed by the Director of the Office of Personnel Management, in consultation with the Special Counsel, the Merit Systems Protection Board, and the Equal Employment Opportunity Commission.

Context

To appreciate the relevance of this language, we need to know a couple of things:

Adverse Actions: To suspend, demote, or fire a Title V career federal employee, most agencies take what is known as an adverse action, 5 USC Chapter 75. Agencies must issue two separate documents to make an adverse action happen:

  • A proposal Notice that tells the employee why the action is being proposed, and explains the employee’s rights to defend himself, and
  • A Decision memo that takes into consideration the employee’s defense of himself, and notifies the employee of the outcome of the proposal; g., removal, demotion, suspension, or nothing.

Rights Notification:  Since the beginning of time (OK, maybe it was just since 1979), agencies have been required to include in the Decision memo an explanation of the employee’s rights to challenge the agency’s final action through appeal to MSPB. Historically, agencies have also included an explanation of the employee’s alternative rights to file a grievance under a collective bargaining agreement, a discrimination complaint to EEOC, and sometimes an explanation of the US Office of Special Counsel’s jurisdiction to consider claims of whistleblower reprisal.

About five years ago, MSPB decided that the various rights notifications used by different agencies were not uniformly informing to the employee of all the alternatives available to challenge the adverse action, and the implication of selecting one venue over the other. Therefore, by regulation, the Board mandated that agencies must provide a complete description of the various redress alternatives when issuing a decision in an adverse action appealable to MSPB.

However, for reasons unimaginable to the common mind, the Board did not say exactly what language should be used for the rights notification. That left agencies floundering around guessing what should be said in the rights notification to make the Board happy, and the Board reviewing those rights notifications judging some to be adequate and others not.

Here at good old FELTG, we did the best we could to sort all that out. As soon as the regulatory requirement was mandated, we offered draft language that we guessed the Board would accept. A few months later, we had to tweak that language because of an MSPB decision that pointed out the need for greater specificity of notice. Still, even with the second tweaked draft, we weren’t really sure that the MSPB was being appeased or whether it just had not gotten around to finding fault with what we had recommended. Lesser agencies who do not abide by our FELTG suggestions continued down whatever language rabbit hole they thought to be the better path. Quite frankly, we were all running backwards in the dark because of the lack of distinct and specific instruction.

Comes Now the NDFAA for Fiscal Year 2018:  Amazingly, somebody on Capitol Hill saw how foolish this was, and interjected the language you see above into a passing piece of legislation. No offense intended here, but I am awe-struck that someone up there appreciates the difficulty that this lack of guidance causes. Talk about civil service minutiae. Hats off to whoever saw the problem, and thanks for trying to fix a dilemma that should never have occurred.

Unfortunately, the law misses the point of a rights notification. An employee needs to know her rights to challenge an adverse action after the decision has been made to implement the action; e.g., in the Decision letter. The statutory language above requires that the rights notification be included in the Notice proposal. So now what will happen is that the poor employee likely will be confused and start filing appeals before the agency has made a decision as to whether an adverse action will be implemented at all, and if so, what it will be. If that happens, poor overworked MSPB will have to dismiss all those pre-decisional appeals as premature, and the confused employee will have to get good advice to know to refile once the final decision is issued. Groan.

MSPB, why in tarnation didn’t you just tell us what language to use as a rights notification in the first place? Why put it on us simpletons to guess at what you wanted? OPM, when you saw that MSPB wasn’t going to be helpful, why didn’t you have one of your senior people Uber over to M Street NW and talk with someone at the Board about a coordinated issuance of acceptable language? This is staff stuff. This is what staffs do. No big decision-making; that’s left to the politicals. Just normal people saying to normal people, “Hey, we got a procedural problem here. Can you help?” Geez, see what happens when you leave it up to Congress to fix something we should have fixed ourselves? Good try; just missed.

We’re all in this together: MSPB, OPM, EEOC, OSC, the other civil service movers and shakers; maybe even old FELTG, if you’ll allow us a guest pass. The goal is to make government work smoothly and fairly. Congress is going to continue to micromanage us until we learn to manage ourselves. This is not the best way to make government work well. [email protected]

“Turn Out the Lights, the Party’s Over”

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By William Wiley, February 6, 2018

That old party-ending song by the Spaniels seems appropriate this week. In case you haven’t heard the death knell tolling, here’s the shot heard ’round the civil service last week. From the State of the Union address:

“Last year, the Congress passed, and I signed, the landmark VA Accountability Act.  Since its passage, my administration has already removed more than 1,500 VA employees who failed to give our veterans the care they deserve. … So tonight, I call on the Congress to empower every Cabinet Secretary with the authority to remove Federal employees who undermine the public trust or fail the American people.”

Media outlets on both sides of the political spectrum foresee this initiative, if it comes to pass, as making it easier to fire people from government as the President claims has happened at DVA this past year. Of course, some talking heads think this is great, and some think this is terrible. Here at FELTG, we take a step back and try to understand just what it means before we jump to judgment.

First, though, a prologue. If an initiative gets into a State of the Union address, you can bet your next paycheck that there is someone very important and powerful in the administration behind the idea and willing to make it happen. This is not some stray remark that will be forgotten after the next tweet storm. This idea has legs, it beat a lot of other ideas out to make it to the speech, and somebody is going to be pushing hard to make it law.

With that said, if the DVA procedures are implemented for the rest of government, let’s take a look at what will change. Read carefully because some of what I’ve seen in the media is not exactly accurate or is misleading. If you get it here from the employment law pros, you get it right.  All numbers refer to calendar days:

Removal Procedure Most of Government DVA New Law
Employee right to a PIP for poor performance Yes No
Proof necessary to support removal Preponderance Substantial
Days for employee response to proposed removal 7 10 (I think)
Days between proposal & removal 30 Usually 21
Days to file an appeal to MSPB 30 7
MSPB stay authority (to order agency to stop) Yes No
Days for AJ to rule 120 (flexible) 63 (firm)
AJ authority to reduce penalty Yes No
Days to appeal an AJ decision to Board 30 9
Days to appeal of Board decision to court 35 9

Grouping the changes allows us to consider their value in the real world (not to be confused with the World of Capitol Hill):

Shortened Time Frames – Reducing the response and decision periods while the employee is on salary makes sense. Let’s get this thing done and get the employee off the payroll. However, we have to admit that a nine-day reduction – with only five to seven of those days being in a pay status – isn’t the greatest salary savings we can imagine; it’s a mere drop in the bucket considering the agency’s overall payroll.

In comparison, shortening the appellate time frames, when the employee is no longer on the payroll, doesn’t seem to create much benefit for the agency, other than one big one that no one’s talking about. Shorten the time frames for an appeal, and we’ve reduced the employee’s opportunity to find a lawyer-representative, and for that representative to put together some sort of defense of the employee. Is it really fair to the employee to allow the agency unlimited time to build a case for removal, then restrict the employee’s time to prepare a defense for no good reason other than disadvantaging the employee? We’ll leave it up to the appellants’ bar to argue that one further.

Reduced Burden of Proof – A lot has been made of this aspect in the press. On paper, lowering the agency’s burden from “more likely than not” (preponderance) to only substantial evidence looks like a big deal. Substantial evidence is “more than a mere scintilla of evidence, but less than the weight of the evidence.” Jones v. HHS, 834 F.3d 1361, 1366 (Fed. Cir. 2016). That should be a major change when we consider that a scintilla is no more than a particle, iota, jot, whit, atom, speck, bit, trace, ounce, shred, crumb, fragment, grain, drop, spot, modicum, hint, touch, suggestion, whisper, or suspicion.

Unfortunately, reality doesn’t give us a lot of hope with this change. Since 1979, the burden of proof an agency must satisfy when firing someone for misconduct has been at the preponderance level. However, in 2015 the good folks at MSPB’s Office of Policy and Evaluation surveyed a bunch of federal managers and found out that 97% (97 freaking percent!) of front line supervisors think the burden is much higher than that. In fact, 90% thought we need just as much proof to fire someone from government as we need to send that same person to the electric chair. Congress could lower the evidence burden even further – to a jot, iota, or whisper – and it would do no good if the profession of civil service law doesn’t do a better job of explaining things to decision-makers.

No More Penalty Mitigation – Of the three areas of change, this one stands to be the greatest benefit to agency managers who are trying to hold employees accountable (and the greatest worry to our friends on the union side). Today, when an agency builds a removal case, half the effort goes into defending the penalty against mitigation; analysis and proof of the famous Douglas Factors. Here at FELTG, when we draft a proposed removal for a supervisor, the charge is usually no more than a page, and the Douglas Factor Worksheet is often three or four pages. Each worksheet page requires file evidence to prove each factual statement in the Douglas Factors. Little is more painful in our business than losing a removal – even though misconduct was proven – because the Board concluded that our penalty was too severe.

Under the DVA’s new procedures, prove the misconduct that is charged, and we’re done. No need to muster evidence to defend against mitigation on appeal. Woo hoo! But think how this could work out. The 20+ year employee with no prior discipline and outstanding performance ratings comes to work 15 minutes tardy one day. If the agency fires him and proves the tardy charge, under DVA’s new law, it appears that we’re done. The Board and the courts have no authority to lower the penalty. If they uphold the charge, they uphold the removal, even though most of us would consider the misconduct to be trivial. Is this really what we want for our federal employees? Is this what we would call an efficient civil service?

Lots of speculation in this situation, folks. And I defer to anyone who has a better handle than do I on DVA’s new law and the direction we’re going with this whole thing. Until we start getting some case law, and until Congress decides whether it will follow the lead of the President, your guess as to how things will look this time next year is just as good as anyone else’s. [email protected]

What a New MSPB Board Member Nominee Should Know

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By William Wiley, January 30, 2018

Finally, after all those political donations and fund raisers, your name pops up as a candidate for a political appointment in the current administration. When you get The Call from White House personnel, your little heart starts to flutter. Will it be the ambassadorship to Ireland? The Under Secretary of State assigned to Europe, Japan, and (interestingly) Honolulu? Or, maybe you’re going to be asked if you’d like to be on the short list for the next vacancy at the Supreme Court. You can hardly wait to find out what they’re considering you for. Your mom has the hometown newspaper holding a space on Page One for the big news.

And then the shoe drops. The President is thinking you’d be of great service as a member of the MSPB. There goes the front-page article. Having no idea what those initials stand for, you quickly Google for more information while you’re telling the caller how honored you are and how you’ve always dreamed of serving the President in his still-new administration. Trying to find out what you might be getting yourself into, you hastily type into the browser’s search field www.mspb.gov. And suddenly you come to believe that you are going to be appointed to a mental hospital located just south of Bordeaux, France.

Fortunately, you soon see your error. The correct site is www.mspb.gov. Whew. Learning French was going to be hard, especially those medical terms.

OK, so you’re being nominated to be a Board member. And after a bit of reading, you find out that this is what a Board member’s life is like:

  1. The Board’s judges do the heavy lifting by conducting a hearing, weighing the evidence, then issuing an “Initial Decision” resolving the appeal of some poor fired civil servant or some other matter within MSPB’s jurisdiction.
  2. When an appeal of the judge’s decision is filed with the Board members, the case is worked by the career staff at HQ, then forwarded to the three Board members for their consideration of a draft decision.
    • If a member agrees with the career staff’s recommendation, he signs his name as adopting.
    • If a member disagrees with the career staff’s recommendation, he drafts a memo to his two colleagues about why he is disagreeing and arguing for a different outcome and a rewritten decision.
    • The other two members then review the appeal file and can either a) concur with the staff’s recommendation, b) concur with the other member’s proposed rewrite, or c) come up with their own proposal for rewrite.
  3. The case then circulates among the three members until at least two of them agree as to how the decision should be written.
    • If there is agreement that the staff’s recommendation is correct, the members sign a vote sheet indicating their agreement, and within a day or two the recommended decision is issued as the Board’s final opinion and order.
    • If there is agreement that the staff’s recommendation is incorrect, the case is returned to the staff for a rewrite.
    • When the rewritten decision is forwarded to the three members, it’s subject to the same rotation for voting and argument as before, although it’s unlikely much argument will happen as the members have already spoken as to the outcome they will adopt.
  4. If all three members agree, the final decision is issued after the original or rewritten opinion and order is adopted by all three members.
    • However, if one of the members disagrees with the other two, that member is given the opportunity to write a dissenting opinion.
    • Then that Dissent is circulated to the other two members to give them an opportunity to respond to the Dissent in the Majority Opinion.
    • Then the dissenting member is given an opportunity to respond to the changes made to the Majority Opinion by modifying the Dissent.
    • And thus, the case goes ’round and ’round until all three members have said all they want to say, and then the final opinion and order is issued.

While you’re on hold with the White House, waiting to talk directly to the President and accept the honor of a nomination to be a Board member, you think about this work that you’ll be doing. You moved paper before, thought about things, and made hard legal decisions. You can do this. When, you retrieve the Board’s annual report, you realize that about five appeals enter the Board every workday. That means that on your end, you’ll have to vote a final decision out on five cases a day to stay even with the incoming workload. OK, that’s a lot of adjudicating to do. But you’re a can-do sort of person, and by really leaning in, eating lunch at your desk, and forgoing long vacations, you can make this happen.

And then you read the FELTG newsletter. There you find out that because the Board has lacked a quorum for over a year, your caseload is not five decisions a day to adjudicate, but 800 pending appeals PLUS five new ones that come in every day.

The automated announcement on the phone says that you’re now being taken off hold:

President Trump: “Hello, this is the President. I’m delighted that you’ve agreed to take a position in my administration!”

You:  CLICK.

Lordy, we hope that somebody out there will accept an appointment to be a Board member given the current situation. Perhaps someone with no family, no friends, and a fondness for working indefinitely beyond the point of mental and physical exhaustion. Our country will be forever grateful.

However, if you do get The Call, we couldn’t blame you one bit if you took a pass. Life’s short. It’s so much more fun casually reading the FELTG Newsletter and going early to happy hours than reviewing all those old boring legal briefs that will be shoved at you.

But if you do take The Call, don’t say we didn’t warn you. [email protected]

Tell Me This is Not Crazy

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By William Wiley, January 24, 2018

I don’t care which side of your bread is buttered, you have to admit that our current system of oversight is a pretty poor way to set up protections for federal civil servants. Consider the following:

  1. Congress so loves the civil servant and wants those individuals in federal employment to be protected from mistreatment by their managerial overlords that it has passed several laws to provide protections:
    • It is illegal for agency managers to mistreat employees because they have filed complaints alleging civil rights discrimination: 42 USC 2000e et seq.
    • It is illegal for agency managers to mistreat employees because they have filed grievances: 5 USC 2302(b)(9)(A).
    • It is illegal for agency managers to mistreat employees because they have engaged in union activity: 5 USC 7116(a)(1).
  1. Congress, in its wisdom or folly, has established at least three institutions to make sure that the above laws are not broken:
    • The US Equal Employment Opportunity Commission has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously filed a discrimination complaint.
    • The US Office of Special Counsel (in collaboration with the US Merit Systems Protection Board) has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously filed a grievance.
    • The Federal Labor Relations Authority has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously engaged in union activity.

Let’s take a non-hypothetical employee who believes that his agency has mistreated him on 40 separate occasions.; e.g., Letters of Warning, failure to accommodate a disability, his supervisor laughed at him … the typical list of reprisal actions. He sees a big poster on the agency’s Official Bulletin Board advertising the rights employees have to file discrimination complaints, and so he does. He believes that he has been mistreated because he has previously filed complaints alleging civil rights discrimination.

As the discrimination process works, he gets to make his arguments to an investigator, then an EEOC judge, and then to the EEOC headquarters unit that oversees federal employee claims of reprisal. And after TEN YEARS, he gets his answer. Indeed, there was reprisal against him on the part of the agency. However, it was not because of his previously filing EEO complaints. Instead, the reprisal – according to EEOC – was because he:

  1. Previously filed a bunch of grievances, and
  2. Previously engaged in protected union activity.

No EEO discrimination here. Sean T. v. USPS, EEOC Appeal No. 0120150928 (December 5, 2017).

This individual (code named: “Sean T.” like some Irish rapper; “Hey, Big Sean T.! Hit me up with that ‘Irish Eyes are Smiling’ tune again. That thing’s dope!”) was employed by the U.S. Postal Service. Therefore, he did not have access to OSC or FLRA, as would a civil servant in another federal agency, but the result would have been the same if he did. EEOC does not have the authority to protect an employee who is mistreated by agency management, unless that mistreatment was motivated by the civil rights laws.

Poor Sean T. After a decade, he finally has an answer. He was not mistreated because he previously filed discrimination complaints. Oh, yes, my friend. He indeed was mistreated. But not because of civil rights discrimination. He just got himself into the wrong forum with his allegation, and thereby is back where he started in 2008 about the time Barack Obama first took the oath of the Presidency.

That seems like so long ago, doesn’t it.

Look. Here at FELTG, we’re not siding with Mr. Sean T. Frankly, he looks like someone who would be a pain to try to manage. Instead, we’re siding – as we always do – with the side of a fair and efficient government. This particular oversight scenario is neither fair nor efficient.

Somebody, please. Fix this. It’s not DACA, but it’s worth some amount of Congressional thought. [email protected]