The Good News: Filing Deadlines Matter

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By Ann Boehm, February 12, 2025

Quick facts:

  • When employees challenge agency actions, they must meet a filing deadline.
  • Missing the deadline is devastating to their case.
  • The deadlines differ, depending on whether they are for a grievance, discrimination complaint, or MSPB appeal.

In my very first real lawyer job – law clerk to a United States Court of Appeals judge – I quickly learned the importance of timely filings. My co-clerk was obsessed with combing through each case file to look for any jurisdictional issues. I recall when he rejoiced upon finding a party’s appeal to be untimely. The case would be dismissed as a result. The court did not have jurisdiction.

Lesson learned. Filing deadlines matter.

When an employee challenges an agency action – through a grievance, discrimination complaint, or Merit Systems Protection Board appeal – there are filing deadlines. Missing a deadline can mean losing a case.

Here are some key filing deadlines to consider:

Grievances: Parties must double-check the agency’s administrative grievance procedure or the collective bargaining agreement’s negotiated grievance procedures for the filing deadlines. The times for filing vary.

Discrimination complaints: An employee must contact an equal employment opportunity counselor within 45 days from the day the discrimination occurred, and then must file a formal complaint within 15 days of receipt of the counselor’s Notice of Right to File Formal Complaint. https://www.eeoc.gov/federal-sector/overview-federal-sector-eeo-complaint-process

Merit Systems Protection Board appeal: An appeal must be filed within 30 calendar days of the effective date of the action, if any, or within 30 calendar days after the date of receipt of the agency’s decision, whichever is later.  https://www.mspb.gov/appeals/appeals.htm

Whistleblower complaint: There is no specific deadline for reporting alleged whistleblower retaliation to the Office of Special Counsel. The general timing consideration for whistleblowers is whether the retaliatory action took place within a time that would lead a reasonable person to conclude that the disclosure contributed to the personnel action.  Typically, actions that occur within two years of the protected disclosure satisfy this test.

For agency advocates, finding a missed filing deadline can result in an easy agency victory.  For employees, missing a filing deadline can result in an unnecessary loss. Timelines matter. Paying attention to them matters. And that’s all Good News. [email protected]

Related training:

The Good News:  In Formal Discussions, Subject Matter Matters

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By Ann Modlin, January 15, 2025

Quick facts:

  • Unions must have the opportunity to be present in formal discussions between bargaining unit employees and the agency.
  • There is some confusion about what constitutes a formal discussion.
  • The FLRA provides helpful guidance on when meetings concern personnel policy or practices or other general conditions of employment.

The Federal labor statute provides a union the opportunity to be represented at “any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment.” 5 U.S.C. § 7114(a)(2)(A) (emphasis added). Congress limited formal discussions to meetings involving those three topic areas. Or to put it another way, if the meeting does not involve one of those three topics, it is not a formal discussion.

Based upon questions raised frequently in training sessions on formal discussions, I think there is confusion about what meeting topics fall into the last two statutory topics: personnel policy or practice and general condition of employment. Fortunately, our good friends at the FLRA have guidance to help with any such confusion.

(PUBLIC SERVICE ANNOUNCEMENT: If you have not discovered the FLRA’s very useful guidance, you are missing out. The FLRA’s guidance documents highlight and summarize relevant case law on so many helpful topics: unfair labor practices, negotiability, information requests, and more. This article focuses on Guidance on Meetings (9/1/15) (FLRA Guidance).)

The FLRA Guidance on formal discussions, like I noted above, states: “Congress specified the subject matters that can be formal discussions. If the meeting topic is not within one of the three subject matters, the meeting is not a formal discussion.” FLRA Guidance at 7 (emphasis added). I’ll cover the subject of “grievance” in a future newsletter article.

In assessing whether a meeting is a formal discussion, the agency and union need to properly analyze whether the meeting is about a personnel policy or practice or general condition of employment. Once again, our good friends at the FLRA are here to help.

The FLRA Guidance explains that “personnel policy or practice” means “‘general rules applicable to agency personnel, not discrete actions taken with respect to individual employees.’” Id. (emphasis added). The highlighted language is crucial, folks. Technically, lots and lots of matters fall under the rubric of “personnel policy or practice,” but that does not mean every meeting with an employee involves a “personnel policy or practice.” Similarly, pretty much every discussion with an employee could involve a “general condition of employment,” but the FLRA Guidance clarifies that for purposes of formal discussions, the meeting needs to cover “conditions of employment affecting employees in the unit generally.” Id. (emphasis added).

Examples provided in the FLRA Guidance may help you with this topic analysis. Meetings that count as formal discussions include discussion of enforcement of a dress code policy; addressing alleged management interference with rights under the labor statute; announcing a change in workweek and staffing; and discussing implementation of a compressed work schedule. Id.

The Guidance then states, once again, “[t]he formal discussion representation right does not apply to meetings related to discrete actions taken with respect to individual employees.” Id. The examples of meetings that are not formal discussions include a discussion between an employee and agency officials regarding an employee’s work assignments and job performance; a meeting related to an employee’s “last chance agreement”; an oral reply meeting in response to a proposed adverse action; or a meeting regarding temporary assignment of two unit employees.  Id. at 7-8.

Managers, employees, and union representatives often feel that any serious meeting with an employee or employees is a formal discussion – especially if it has negative implications for the employee (like a discussion on performance concerns). But that is not what Congress intended. If you do not trust me, trust the FLRA. The subject matter matters.  And that’s Good News. [email protected]

Related training:

The Good News: A Letter to Santa 2024

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By Ann Modlin, December 11, 2024

Dear Santa:

With a new administration taking over in January, changes are sure to happen. Change can be scary, but I’m an eternal optimist. As a result, I’ve decided to go big this year. Here’s what I’d like for Christmas:

1. An end to numerical redundancy.

There is absolutely no need to ever write out a number and put the numeral in parentheses. This is what I’m talking about – ten (10); forty (40); seventy-five (75). Please make it stop, Santa. The easy rule is that numbers are written out one through ten (or nine, depending on your style guide), and numerals are used for 11 and up.

2. A budget from Congress.

I’m pretty sure I ask for this every year. Despite what some people think, the Federal government does a lot of good things. It takes money to do those good things. Federal employees should not have to worry about funding every single year! Congress needs to pass a budget now!

3. Help supervisors and advisors understand the burdens of proof are low for disciplinary and performance actions.

To discipline an employee, the agency must show that, more likely than not, the employee engaged in misconduct and that the penalty was reasonable — just 51%.

To remove a poor performer, the agency must show that any reasonable person might (not “would”) agree that the employee performed at an unacceptable level — just +/- 40%.

Easy as pie! (Speaking of pie, let’s add an apple pie to this list.)

4. Simplification of probationary and trial periods.

The probationary or trial period is a magical timeframe during which agencies may terminate Federal employees for unacceptable performance or misconduct without the due process rights that attach after that period. It should be simple to know who is a probationary employee and who is not, but sadly, it can be very complicated. Perhaps the new Congress and Administration could go to work on simplifying the language about probationary and trial periods in the U.S. Code. And heck, why not just make an across-the-board two-year probationary period for all competitive service and excepted service employees? This would take away some of the confusion. (I told you I’m going big this year).

5. Simplification of the Federal EEO process.

Santa, please don’t laugh at this one. The process is overly complicated, and I’m not sure it really helps remedy illegal discrimination. And EEOC Administrative Judges are completely overloaded. How about a pilot program with one agency trying the EEO system used by the private sector. Here’s how it works:

  • The employee has 180 days to file a complaint with the EEOC.
  • The EEOC notifies the agency of the complaint within ten days of receiving the complaint.
  • The EEOC offers voluntary mediation.
  • The EEOC has 180 days to investigate the claims, and the agency may submit a written response to the complaint.
  • If the EEOC does not complete its investigation within 180 days, the employee has a right to sue in Federal district court.
  • If the EEOC completes the investigation within 180 days, the EEOC can decide to sue on behalf of the employee or dismiss the complaint and give the employee a notice of right to file suit in Federal district court within 90 days.

This process works for private-sector employers. Why not give it a shot for the Federal government?? (Yep – I’m going big!)

6. Limit collective bargaining agreements to 150 pages.

I sense you may be laughing at this one too. No one wants to read hundreds of pages in a collective bargaining agreement.

7. A horse.

I have asked for a pony for many years, and no luck so far. In the spirit of going big, I would like a horse.

Merry Christmas and Happy New Year, Santa! [email protected]

Related training:

The Good News: It’s Just as Easy to Say ‘Yes’ as It Is to Say ‘No’

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By Ann Modlin, November 13, 2024

Quick facts:

  • Agencies are often risk-averse when it comes to holding employees accountable for performance or conduct.
  • Balance the employee’s impact on the agency mission against litigation risks.
  • Explain to managers the pros and cons of moving on an employment action.

Empirically, it is just as easy to say “yes” as it is to say “no.” The word “yes” has three letters. The word “no” has two letters. Both are one syllable. The extra letter in “yes” is not a game changer.

If that is true, why do we regularly hear managers say things like this?

  • “We wanted to remove the employee for 60 days of AWOL, but counsel said no.”
  • “My employee is performing at an unacceptable level, but HR said no to putting them on a PIP.”
  • “The employee already has a letter of reprimand and a 14-day suspension, but my personnel attorney said no to removal on this latest misconduct matter.”

My first reaction to comments like this is to shake my head and empathize. The government, and not any individual, is on the hook for liability in a losing case.  But agencies are bizarrely risk averse. Even a litigation loss, which does not happen often, is not impacting on anyone financially. Why the fear?

The optimist in me is hopeful that perhaps, just perhaps, advisors need a change in mindset. Try saying “yes” instead of “no.”

Here are some things for advisors to contemplate.

  • If a manager is coming to you about a problem employee, presume that the manager is dealing with a legitimate problem. The employee is negatively impacting the mission. Trust managers. Listen to them. Avoid knee-jerk reactions.
  • Do not dwell on the one case the agency lost in 2006 when considering an employment matter in 2024. Figure out what went wrong in that 2006 loss and avoid doing that in 2024. But do not just say, “No, remember that 2006 case!”
  • Presume the employee is going to litigate. They have many ways to challenge adverse employment actions. So, prepare to win the litigation. Too often, the “no” answer is an effort to avoid litigation. I get it – litigation is hard. However, agencies win around 80% of the time at the MSPB and 97% before EEOC Administrative Judges (at least that was the number in 2020). Litigate. Win.
  • Trust your managers. They are the ones dealing with the problem employee every single day. Figure out how to help them. Get to “yes.”
  • Try to understand the negative impact of bad employees on a mission as much as you understand the risks of litigation.
  • Keep in mind, too, that counsel and HR specialists are advisors. Embrace that role. Tell managers the pros and cons of moving on an employment action, but stop defaulting to “no.” If they say they want to take the action, help them do everything correctly. (After all, OPM’s comments on 5 CFR § 752.403 regulations say that agency supervisors make these decisions after consulting with agency advisors.)

Advisors, try to switch your mindset. Break the habit of saying “no.” Use your great skills to put the agency on the path to win the employee’s challenge. “Yes” is not just easy to say and to do! And that’s Good News. [email protected]

Related training: