Is Whistleblowing Different Under a Biden Administration?

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By Deborah Hopkins, February 10, 2021

We have a new President in the White House, there’s something you may not have realized: He sees things differently than the last guy who occupied 1600 Pennsylvania Avenue. At FELTG we try not to wade into the merits of politics; our job is to take what the current administration says about employment law topics, and relay those to you within the existing framework of law and regulation, plus any relevant Executive Orders. That said, there are certain ways in which the politics of the party in control impact what we teach and how we teach it. Take whistleblowing, for example.

Federal employees who make protected disclosures about waste, fraud, or abuse in the government are considered whistleblowers, and the highest level of workplace protections of any employee group. Higher than veterans, people with disabilities, union officials, religious minorities, LGBTQ individuals, and more. The law says that whistleblowers may not be fired, disciplined, or otherwise mistreated because of their disclosures. If an agency takes an action against a whistleblower, it needs to provide clear and convincing evidence the action was not taken because the employee blew the whistle.

Under President Trump’s administration, there was a focus on firing leakers who shared inside information with the public. Firing a leaker is perfectly legal, unless of course the leaker is a whistleblower – in which case it’s against the law. So, over the last four years agencies concentrated on looking closely at the nature of the disclosure (the “leak”) to determine whether it rose to the level of protected whistleblower activity, or whether it was simply misconduct. If it was a close call, many agencies took the side of management and adopted the stance the disclosure was not protected, and handled the employee accordingly.

Today, we still have to look at the nature of the conduct to determine if it is protected activity, but under President Biden the philosophy about whistleblowers has shifted. Instead of viewing whistleblowers as leakers, the President (when a candidate and then as President-elect) has spoken about the need for employees to disclose waste, fraud, and abuse in the government – heck, he even hired a high-profile whistleblower to be part of his transition team. So now, if there’s a close call, perhaps we’ll see agencies take the side of assuming the disclosure was protected.

This Republican/Democrat dynamic is unsurprising. Republican administrations tend to be more pro-management and Democratic administrations tend to be more pro-employee. Members of both parties have talked publicly, and emphatically, about the importance of protecting whistleblowers – but traditionally hairs have been split when looking at what was disclosed and whether it was protected activity.

What does this mean for whistleblowing in 2021? You might expect, as political appointees are confirmed or placed in your agency, for the tone about whistleblowing to change. Perhaps you will be encouraged to settle existing reprisal complaints. Perhaps whistleblowers will be urged to come forward with disclosures. Perhaps Congress will pass a new law [PDF] with more protections.

And perhaps not. Regardless of who is in the White House, whistleblower reprisal is going to occur – though our goal at FELTG is to educate the powers-that-be so that reprisal eventually stops altogether. That might be your job too, and now is a good time to check in with what you know, and what you might not know, about whistleblower protections. As timing would have it, Bob Woods will be covering the most important details in just 60 minutes during the February 25 webinar Why, How and When to Avoid Whistleblower Reprisal. We hope you’ll join us. It’s too important to miss.  [email protected].

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]

Can Agency Fire Employee Who Took Part in Capitol Siege? You Decide

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By Deborah Hopkins, January 11, 2021

Unless you were living under a rock on a deserted island without Wi-Fi for the last week, you saw the horrifying sight of a mob of American citizens, in protest of the results of the Presidential election, rioting at the United States Capitol.

Dozens, if not hundreds, of individuals engaged in violence against law enforcement officers, broke into one of our country’s most sacred buildings, destroyed government and personal property, smoked marijuana, defaced statues, stole government property, and drove our elected Members of Congress and their staffs – dedicated federal employees – to evacuate the building in fear for their safety. At least 5 deaths have been reported.

So, what would, could, or should happen if one of the rioters turned out to be a federal employee? We know that private sector companies have issued terminations. Can a federal agency fire such an employee?

When asking and answering this age-old question, it’s important to remember the discipline framework, regardless of the nature of the conduct. Following the framework will bring you to the right answer every time. At FELTG, we call this framework the Five Elements of Discipline.

I’m not going to fill in the answers for you; instead I am intentionally leaving space so that you can do the work and come to your own conclusion, with the guidance of some helpful hints in italics and a few Notes that might be of interest.

Element 1. Did the employee violate a rule?

Hint: Rules can come from a variety of places — statute, regulation, policy, should-have-known, agency SOP, code of conduct, supervisor’s unique rule, common sense, etc.

What rule(s) did the employee violate?

 

 

Note on nexus. Keep in mind if the misconduct occurs off-duty, there must be a nexus between the misconduct and the efficiency of the service. Assaulting a Federal police officer or destroying Federal property, and other things of that nature, show a link between the misconduct and the efficiency of the service.

Element 2. Does the employee know the rule exists?

Hint: An agency can’t enforce secret rules, so it has to show the employee knew, or should have known, there was a rule prohibiting such conduct.

What notice does this employee have, based on the rule(s) identified in Element 1?

 

 

Element 3. What evidence do you have that the employee broke the rule?

Hint: News footage, social media posts, emails sent on a government computer, courtroom testimony, and more have all been used as evidence in administrative cases.

What evidence would you use – and is it evidence at the preponderant level?

 

 

 

Element 4. Is removal an appropriate penalty?

Hint: Use the Douglas factors to get to the outcome. If you need a reminder, a Douglas Factors Worksheet can be found here: https://feltg.com/douglas-factors-worksheet/.

 

 

Note: In egregious cases such as these, you’ll want to hit hard the Douglas factor of the harm or potential for harm, but don’t ignore other factors such as job level, the cost of the damage, your trust and confidence in the employee, the potential for rehabilitation, and the employee’s past misconduct, especially if it involves violence, insubordination, or similar.

Element 5. Will you provide due process?

Hint: As tempting as it might be to tell someone who assaulted a Capitol Police Officer with a lead pipe “You’re fired, effective immediately,” you’ll want to be sure to follow the due process requirements that most career employees enjoy. That’s right, this citizen who has attempted to overturn the Constitution, is still entitled to his own Constitutional employment protections.

List the three-step due process requirement you’ll provide.

 

1.

2.

3.

(If you don’t know the process, then check out this article for a reminder: https://feltg.com/due-process-challenges-in-a-covid-19-world/)

Additional Considerations

A- If the employee was supposed to be working at the time they were breaking into the Capitol, the agency can charge the employee AWOL. In fact, that might be a streamlined way of getting to the removal, without having to rely on anything involving the violent behavior.

If the employee was arrested and didn’t show up to work the next day because they were in jail, the agency can also charge AWOL for that time. An employee’s annual leave request does NOT have to be approved because they are in jail.

OPM says annual leave requests may be denied if the agency’s denial is reasonable. You tell me: Is it reasonable to deny annual leave to someone who tried to overthrow Congress, assaulted federal LEOs, and destroyed government property in the process?

B – The agency can (and should) put the employee on Administrative Leave during the notice period, so they don’t come after you with a lead pipe because you’ve proposed their removal. Once regulations are issued on 5 U.S.C. 6329b the agency can use Notice Leave instead.

C – There are obviously criminal implications here. Because a removal is an administrative procedure, the agency does NOT need to wait for criminal charges to be brought, let alone a criminal conviction. Charge the underlying misconduct (for example, conduct unbecoming a Federal employee) and prove it by a preponderance of the evidence, and this employee could be off the payroll before investigators or police have paid him a single visit.

D – If you want to take the employee off the payroll even faster, you can invoke the Crime Provision under 5 U.S.C. 7513(b)(1).

We talk about all these things in upcoming training classes including UnCivil Servant: Holding Employees Accountable for Performance and Conduct (February 10-11) and MSPB Law Week (March 29-April 2). I hope you’ll join us. And please – stay safe out there. [email protected]

What Will Be The Fate of the Trump Executive Orders?

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By Michael Rhoads, January 11, 2021

Happy New Year! The Counting Crows said it best in A Long December: “And there’s reason to believe, maybe this year will be better than the last.” I don’t know about you, but I do have a sense that this year will be better than the last.

A common question in the transition from one administration to the next is which Executive Orders will survive and which will be rescinded. During his campaign, former Vice President Joe Biden signaled that he will rescinding some Executive Orders on his first day in office.

Among the first EOs to be rescinded will likely be those affecting Labor-Management Relations. The National Treasury Employees Union (NTEU) published its recommendation in November to rescind EOs 13836, 13837 & 13839, along with other actions they would like to see the Biden Administration take. Rescinding these EOs will help improve the climate of Labor-Management Relations in the Federal workforce by relieving pressure on the management side to expedite negotiations on new collective bargaining agreements. It will also ease official time restrictions for union work. Yet, there is still more work to do on both sides when it comes to improving Labor-Management Relations.

Diversity Training

Some Executive Orders have already been suspended by court order. In response to a preliminary injunction [PDF] issued by the US District Court for the Northern District of California, the Department of Labor released a Notice Regarding Executive Order 13950, related to restrictions on diversity training. The Office of Federal Contract Compliance Programs (OFCCP) will stop using the hotline set up to collect information, cease investigations of noncompliance with the EO, and not take any enforcement action outlined in the EO.  OFCCP will also stop publishing any Requests for Information which sought information related to compliance or noncompliance with the EO.  Additionally, contract clauses restricting the use of the diversity terms outlined in the EO, such as “white privilege,” will not be enforced.

Update on Schedule F

Despite calls from good governance and federal employee groups to block Schedule F, Congress did not block it in this year’s spending bill, and Schedule F may not be easy to eliminate with the stroke of a pen. It will still have the support of elected officials eager to reshape the federal workforce. According to University of Texas Professor Dr. Donald F. Kettl, conservatives may use Schedule F to wage a court battle calling into question the constitutionality of the Federal government’s merit-based system itself.  This could hinder the Biden Administration’s ability to run the federal government in the short term and change the Federal workforce in the long run.  The status of this EO is “to be continued…,” even if only in part.

Find out more, along with what else to expect – and what things might not change – by attending our webinar series: Toolkit for a New Administration: Essential Skills and Knowledge for Federal Supervisors, Managers, and Leaders.  The first webinar will be held on January 21, so you can get an immediate jump on what you need to know, and how to apply the knowledge to your day-to-day operations.

Stay safe, and remember, we’re all in this together. [email protected]

Douglas Factors Worksheet

DOUGLAS FACTORS WORKSHEET

Douglas v. Veterans Administration, 5 MSPR 280 (1981)

  1. The nature and seriousness of the offense and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated:

 

 

  1. The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position:

 

 

  1. The employee’s past disciplinary record:

 

 

  1. The employees past work record, including length of government service, performance on the job, ability to get along with coworkers, and dependability:

 

 

  1. The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon the supervisor’s confidence in the employee’s ability to perform assigned duties:

 

 

  1. Consistency of the penalty with those imposed upon other employees for the same or similar offenses:

 

 

  1. Consistency of the penalty with applicable agency table of penalties:

 

 

  1. The notoriety of the offense or its impact upon the reputation of the agency:

 

 

  1. The clarity with which the employee was put on notice of any rules that were violated in committing the offense or had been warned about the offense in question:

 

 

  1. The potential for the employee’s rehabilitation:

 

 

  1. Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice, or provocation on the part of others involved in the matter:

 

 

  1. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others:

 

 

PENALTY SELECTED:

OPM Finally Answers the Question About Notice of Appeal Rights at the Proposal Stage

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By Deborah Hopkins, December 15, 2020

During our recent webinar on implementing the new OPM regulations on performance and conduct (if you missed it, you can still view the recording), the following question came in:

There has been some discussion in my agency about providing employees with a notice of appeal rights in the proposal letter. Can you please help clarify whether this notice is now required, and if not when it will be required?

And here’s the FELTG response:

First, the notice of appeal rights is not required in actions taken under 5 USC 315 (probationary removals), 432 (performance-based actions), or 7515 (discipline for whistleblower reprisal). See the discussion on p. 127 of OPM’s regs:

As noted above, the amended regulation will not require that agencies include appeals rights information in a notice of proposed action taken under section 7515. Notwithstanding, it is important that the commenters understand that current and amended parts 315 and 432 do not require that agencies provide advance notice of appeal rights … Further, it is well established in statute, regulation, and case law that an employee cannot appeal a proposed action.

As far as chapter 75 removals, the 2018 NDAA (Pub. L 115-91, Section 1097) says:

(b)(2) 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.

Our understanding at the time this law was issued in 2017 was that OPM would provide the official language after consulting with the other agencies mentioned, and that until such language is developed, there was no requirement to include appeal rights at the notice stage. By the way, providing a notice of appeal rights at the proposal stage really doesn’t make sense, as the timing is preliminary (Bill Wiley wrote about this when the law first came out), but hey, we didn’t write that law.

But, then the regs were published and we started to think that maybe OPM was kicking this down to agencies because the regs, including this one, became effective last month: 

752.203(b) Notice of proposed action. “… The notice must further include detailed information with respect to any right to appeal the action pursuant to section 1097(b)(2)(A) of Pub. L. 115-91, the forums in which the employee may file an appeal, and any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file.”

There was no indication in the regulations or the response to the comments that OPM had consulted with MSPB, EEOC, and OSC to develop the appeal rights notification as required by law. In fact, as far as we know, none of the other agencies has acknowledged formally or informally that they have been consulted with regarding the development of appeal notification language.

But then last week OPM issued further guidance [PDF] that does indeed leave the language development up to agencies.

Here are a few takeaways from the answer to this question:

Are agencies required to provide appeal rights information in an adverse action proposal notice?

    • The requirement to provide the appeal rights information at the proposal notice stage is a statutory requirement under section 1097(b)(2)(A) of Pub. L. 115-91.
    • Part 752 requires that a notice of proposed action under subparts B, D and F include detailed information about any right to appeal any action upheld, the forum in which the employee may file an appeal, and any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file.
    • This regulatory change does not confer on an employee a right to seek redress at the proposal stage.
    • The appeal rights language included at the proposal stage specifically relating to choice of forum and limitations related to an employee’s choice of forum will vary depending on circumstances, the nature of a claim and the type of employee.
    • Appeal rights may include but are not limited to filing an Equal Employment Opportunity complaint with the Equal Employment Opportunity Commission; a prohibited personnel practice complaint with the U.S. Office of Special Counsel; a grievance under a negotiated grievance procedure; or an appeal with the Merit Systems Protection Board.
    • OPM does not view the addition of procedural appeal rights language in the regulation to constitute a requirement to provide substantive legal guidance at the proposal stage or to serve as a substitute for advice an employee may receive from an employee representative.
    • Agencies are encouraged and advised to consult closely with their agency counsel to develop the best course of action for implementation of this requirement.
    • Employees are encouraged to consult with their representatives to determine the best options available to them at the proposal and/or decision stage if an employee believes that an agency has taken an action which triggers the right to file a complaint, an appeal or a grievance.

Ugh. Seems like it could be a lot of work for no reason other than to comply with a law that requires notice at the wrong stage. OR, given the flexibility, it could also be interpreted that a general notice of potential appeal rights [PDF, 908.05 KB] would satisfy this regulatory requirement since the proposal stage is preliminary.

The good news is that whatever notice is provided should not affect the merits outcome of the case on appeal. If the final decision contains a fulsome description of the employee’s appeal rights, any error in not providing an appeal rights notice with the proposal (or, alternatively, providing a notice not developed by OPM) would be harmless and the adverse action would not be set aside on procedural grounds. [email protected]

How Much Information Does an Employee Have a Right to at the Proposal Stage?

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By Deb Hopkins and William Wiley, December 15, 2020

Here’s an email that recently came across the FELTG desk:

Dear FELTG,

Our agency has encountered an issue we haven’t seen, and were wondering if you might have some insight.

Typical for my agency’s chapter 43 removals is that the employee objects to not having access to their work documents, work laptop and programs, etc. (because they are put on admin/notice leave simultaneous with the issuance of the proposal) and thus isn’t able to offer a meaningful reply. We wonder if this is a common issue, and if perhaps there is an easy remedy that we’re overlooking.

Our proposals for chapter 43 removals include specific descriptions of each performance deficiency, with identifiers to specific instances (such as case numbers or project names and dates), but do not include or attach primary documents like screenshots or work files; the materials relied upon (outside of the proposal’s detailed description of the unacceptable performance) are usually the supervisor’s letter from the end of the opportunity period notifying the employee of the unacceptable performance, and if the timing lines up, the performance appraisal in which the supervisor rates the employee unacceptable.

So if an employee wanted to base their defense on individual case files, they would not have access to them through the materials relied upon; case files/documents/screengrabs aren’t provided with the proposal. We can’t anticipate every file an employee would want, so it’s hard to handle this prospectively, but options that have occurred to us are to (1) acknowledge in the decision that the employee objected to not having access, but did not actually identify or request any documents/files that would support a defense; or (2) when an employee objects to lack of access, the deciding official can ask the employee to identify what documents they need, and we can provide them and incorporate them into the materials relied upon. Option 1 may be risky (what if an administrative judge construes their objection to be a request that we failed to respond to?), but option 2 seems like it could delay the process and blow by mandated timelines.

What do you think? Is there a simple solution (or reassuring case) we’re missing, or a risk we’re misevaluating?

And here’s the FELTG response.

Well, we can’t give you specific advice on your situation, but we can speak to the principle in general. There’s a case we cover in MSPB Law Week (next offered virtually March 29 – April 2), that involves a misconduct removal but covers the same principle of access to documents during the notice period. In the event that an agency refuses to voluntarily make pertinent documents reasonably available prior to a Board proceeding, the Board’s rules provide for the issuance of orders compelling discovery by interrogatory or deposition, and for the issuance of subpoenas. See Kinsey v. USPS, 12 MSPR 503 (1982). This language “prior to a Board proceeding” assumes there is a Board appeal, which, of course, is not the case during the notice period.

The agency has no obligation, until the discovery phase, to produce any materials it did not directly rely upon in making the proposal. As long as the employee is given the material relied upon (and in a 432 action that’s entirely what happened during the performance demonstration period, PIP, or whatever your agency calls it now), the agency has fulfilled its obligation.

In another case we talk about during MSPB Law Week, the agency referenced shortcomings in medical care the employee provided to patients, but did not provide the employee the specific deficiencies or the records themselves that contained a description of the deficiencies. In reversing that removal, here’s what the Board said:

During the processing of the appeal, the appellant continued to express her confusion over the nature of the charge and attempted, without success, to  discover  the specific reason for her removal. For example, in “Appellant’s  Motion  to  Compel Production,” the appellant’s attorney stated that the appellant was “charged with failure to maintain her clinical privileges, which, so far as she can determine, calls into question the quality of care she has given to inmates for the undetermined period of time.”

In  “Appellant’s  Prehearing  Submissions,”  the  appellant’s  attorney  asserted  that       “there  is   complete lack of constitutional due  process” because the appellant “never knew prior to the time she was fired, nor does she know now, what acts of omissions on her part are the reasons for her termination nor what standard she fell below.” Alexander v. DoJ, DE–0752-97-0313-I-1 (1998).

The principle involved in situations like these is as old as the Constitution: “Fundamental due process requires that notice of charges against an employee be sufficiently detailed to provide a meaningful opportunity to be heard. In analyzing a claim of denial of due process, the Board will examine, among other things, whether the lack of specificity in the notice affected the appellant detrimentally or caused her any surprise during the hearing.” Mason v. Navy, 70 MSPR 584, 586-87 (1996). In your case, if the proposal said something like: “In case XYZ, you failed to attach an appendix,” then, in our opinion, that would satisfy due process. However, if it says something like: “In case XYZ, you did not conform with our SOP,” then that would not satisfy due process.

A basic way to look at which documents have to be provided is to ask the proposing official what he personally looked at in drafting the proposal. Did he look at a screen shot? If so, then the safest approach would be to include the screen shot along with the proposal. If he did not, then there’s no right for the employee to have access at this stage. The good news is that the employee is not entitled at the proposal/response stage to a fishing expedition to look for exculpatory documents or other evidence. That’s what he gets during discovery. [email protected]

How Long is Too Long for COVID-Related LWOP?

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By Deborah Hopkins, November 17, 2020

Nearly every day, we at FELTG get questions about COVID-related federal workplace issues. Here’s a recent one worth sharing with the rest of the FELTG Nation.

Dear FELTG:

I was wondering if there was any guidance on how long an agency must allow an employee to remain on Leave Without Pay status if the employee is high risk. Hypothetically, we have employees working in the stores so telework is not an option. If an employee has been given a medical note stating they should avoid exposure or remain at home, and has now been on LWOP for several months, where’s the limit? At this time, there is no end in sight with regards to the pandemic, so no return to work in sight either.

And our FELTG response:

In some ways this is a hypothetical “who really knows” situation because we don’t have any precedent for this pandemic. OPM has encouraged flexibility with telework and scheduling, but obviously someone who works in a store needs to be onsite to do that. Here are a few general thoughts related to your hypothetical.

The employee’s LWOP may be a reasonable accommodation, since the agency is granting LWOP because the employee’s condition prevents him or her from coming to work. Of course, whether it’s an RA depends on why the employee is high risk: Does the employee have asthma or an autoimmune disorder, for example (disabilities)? Or is the employee over 65 and high-risk according to CDC guidance (not a disability)?

Assuming this is an RA, the proper analysis would be to ask at what point the LWOP becomes an undue hardship for the agency, because EEOC’s stance is that attendance is not an essential function of a federal job. And if it’s not yet documented as an RA, that would be an important thing to do, to show the agency fulfilled its obligation to accommodate the employee.

The next thing to do, after the LWOP was determined to be an undue hardship, would be to consider reassignment to a job the employee could perform from home.

If all that failed, this might be a case where the agency could remove the employee for medical inability to perform, depending on what the medical documentation says, and whether a reassignment was available.

If the employee is high-risk simply because of age, or because they live with someone who is high-risk, then none of the RA steps above will apply. In that case, the agency would need to issue a return to work order (whenever LWOP goes beyond a reasonable time), and then could remove the employee if they refused to report. As far as how much LWOP is too much, we really can’t answer that – some agencies allow employees to use it for years. Others are more strict. It really depends on your agency’s staffing situation.

Down the road, this might become an excessive absence removal, especially if the LWOP goes on for over a year, and the return to work is not foreseeable (be sure to follow the Cook analysis if you go this route, and look at cases to help determine how much leave is “excessive” under the law).

All that said, this employee could be reassigned as well, not as part of RA but because the agency has a business need to fill a job elsewhere and doesn’t want to fire the employee.

This is a tough situation. COVID is out of everyone’s control, and agencies want to protect high-risk employees. However, agencies also have to get the work done. Lots to consider here. Good luck! [email protected]

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

OPM Regs Provide Clarification on Clean Record Settlements

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By Deborah Hopkins, November 17, 2020

Earlier this week, new and updated OPM regulations on 5 CFR Parts 315, 432 and 752 went into effect. Among the most significant changes included guidance, inspired by Executive Order 13839, on what agencies may and may not do when settling an employment law dispute with an employee. We’ll look at the specific language in § 432.108, the principle of which is also applicable to part 752 actions.

  • 432.108 Settlement agreements.

(a) Agreements to alter personnel records. An agency shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records, including an employee’s Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse action.

FELTG Note: What does this mean for litigation files? Agencies may need to keep track of documentation for litigation in another forum, such as EEOC or OSC. A narrow reading means an agency probably could keep a litigation file without violating this limitation. We won’t know until more guidance is issued, or the matter is litigated before the still-lacking-a-quorum MSPB. One other item to point out: Proposed action memos are not normally retained in official employee files, as they are preliminary steps that may or may not lead to future action.

(b) Corrective action based on discovery of agency error. An Agency may take discipline out of the record if it discovers errors of fact or legality. In all events, however, the agency must ensure that it removes only information that the agency itself has determined to be inaccurate or to reflect an action taken illegally or in error.

FELTG Note: This makes sense. If an employee is disciplined and it turns out the discipline was not warranted (for example, the discipline was whistleblower reprisal), then the discipline should be taken out of the record.

(c) Corrective action based on discovery of material information prior to final agency action. When persuasive evidence  comes to light prior to the issuance of a final agency decision on an adverse personnel action casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation, an agency may decide to cancel or vacate the proposed action.

There’s a whole lot more on these regulations. If you missed the webinar I held earlier this week, we’re reprising Implementing New OPM Regs for More Effective Disciplinary and Performance Actions on December 3 at 2 pm. Register now before it sells out.

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]