Performance Requirements and PIPs, Post-Shutdown

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By Deborah Hopkins, February 13, 2019

The longest shutdown in history is over, but there is a threat of yet another shutdown coming up in just a couple of days. At FELTG, we’ve gotten a LOT of questions about the shutdown, including a number on shutdown-related employee performance issues. So I think it makes sense to address some of the questions, and answers that have arisen over the last 7 weeks or so.

Do you need to alter performance requirements after a shutdown?

Yes, No, Maybe.

Yes. Of course, you can’t hold accountable any work that was not done during the shutdown; you essentially have to ignore the work that was not done and be reasonable in rating the employee’s performance after she gets back to work. For example, let’s say to be fully successful, one of the critical elements of the employee’s performance plan requires the employee to return all customer voicemails within 24 hours. Well, if the voicemails had been piling up for 35 days while the government was shut down, it’s completely unreasonable to require the employee to return every single call within 24 hours.

No. If the employee’s performance plan is broken down into daily requirements that haven’t been impacted by the shutdown, and the employee has not come back to a huge backlog, there may not be any need to alter the performance requirements. If an employee on the custodial staff is required to clean 10 offices each day, and those 10 offices have been empty for the last 35 days, you wouldn’t need to alter the performance requirement.

Maybe. Let’s use the example of custodial staff again, and those same 10 offices the employee is required to clean every day. If those offices had been used by essential personnel during the shutdown and after 35 days of not being cleaned they are atrocious and take 10 times as long to clean to the appropriate standard, then you may have to temporarily modify the performance requirements until things are back to normal.

The best idea is to communicate with your employees and set reasonable expectations for performance during this “dig out” period. When the backlog is cleared, let the employee know it’s back to business as usual. Oh, and follow up the discussion with an email as documentation of what you discussed.

What do you do if an employee’s Performance Improvement Plan was scheduled to start during the shutdown?

Oh, what a fun one. Remember, to put an employee on a PIP, you only need to be able to articulate a reason for doing so – that the employee fell below acceptable on at least one critical element of his performance plan. Therefore, you can put an employee on a PIP post-shutdown based on his performance leading up to December 21. If you had planned to launch a PIP January 2, but couldn’t because the employee was furloughed, then you can start it any time you want, as long as you can articulate the reason for the deficient performance.

The only time you might want to re-think it is if your poor performing employee came back post-shutdown and has been a rock star for the last couple of weeks, outperforming everybody.

What do you do if an employee’s Performance Improvement Plan was scheduled to end during the shutdown?

Unless there was only a day or two remaining in the PIP, you must extend the PIP by however many days were left in the PIP when the shutdown occurred, and you must ignore the period the government was shut down in the overall assessment of performance productivity. You will also need to look closely at the PIP requirements and make adjustments as necessary, to reflect the legal requirement that you allow the employee an opportunity to demonstrate acceptable performance.

For example, let’s say the employee had 15 days left on the PIP when the agency shut down. Now, you’re picking up with the remaining 15 days on the 30-day PIP and perhaps setting new deadlines and goals for the weekly assignments you’ve laid out. (If you haven’t done this, come to MSPB Law Week to learn why it’s so important). You can’t change or alter a performance standard, but you can clarify it. If the draft grant proposal was supposed to be completed by day 25 of the PIP, you’ll let the employee know he has 10 days to finish that proposal. Be specific, be clear, to let the employee know what exactly is expected.

If the PIP was all but over, and was supposed to end December 24 (Merry Christmas!), you probably have enough evidence to show whether or not the employee was successful. The shortest PIP on record, that the MSPB held was a reasonable amount of time to demonstrate performance, was 17 days. See Bare v. DHHS, 30 MSPR 684 (1986). 

Can you cancel an employee’s already approved leave once the shutdown ends due to performance workloads that now exist because of the shutdown?

Absolutely – you can always cancel previously-approved leave if you have a legitimate, business-based reason for doing so – as OPM puts it, for “project related deadlines or the workload of the agency.” And a 35-day backlog with all the related issues is most certainly related to the agency’s mission. So if you have to do it, go ahead and do it.

At FELTG we are keeping our fingers crossed that there is NOT another shutdown this weekend. But we’ll be here, either way. [email protected]

 

The State of Civil Service: January 2019

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By Deborah Hopkins, January 23, 2019

We’re just over three weeks into the new year and it’s safe to say, the state of the civil service hasn’t seen darker days in quite some time – if ever. There has been a lot happening (and a lot NOT happening, unfortunately), and with the ever-shortened news cycles, there’s a chance that  blink-and-you-might-miss-it information may have passed you by.

Let’s take a look at where we are, and where we might be going, as it relates to our loyal FELTG readers.

The Longest Shutdown Ever

Supposedly only 25 percent of the federal government is shut down, but it sure feels like a lot more, doesn’t it? If you’re furloughed and about to miss your second paycheck, or if you’ve been working for a month without getting paid, you feel the pain more each day. Contractors are getting crushed from the lack of business, as are restaurants and other business owners who rely on federal employees to keep afloat. And those of you whose agencies have been operational have also had to deal with some headaches, including rumors of travel restrictions that end up being just rumors, cancelled conferences and events, and plummeting morale among federal employees.

It’s ugly and I hope it ends soon. I know more than a few federal employees who are done waiting on this to be resolved and have decided to seek employment in the private sector. That’s a shame because these are wonderful, brilliant, amazing people whose departures will be a huge loss to the government.

Congress

Despite the lack of meaningful movement on the aforementioned shutdown, the House recently passed a bill (originally introduced in 2017) that addresses discrimination and sexual harassment in federal agencies. The Federal Antidiscrimination Act amends the NO FEAR Act and clarifies that the role of agency EEO offices shall operate independently of HR and OGC. OK that’s fine, no big deal, right?

Just wait. Further on down, you’ll see that the law would require the EEOC to inform the U.S. Office of Special Counsel (OSC) of all findings of discrimination or retaliation in its appeals. OSC will then review the case for the purposes of seeking disciplinary action against the employee who engaged in discrimination or reprisal. From my read, it looks like agencies will not be allowed to discipline that employee once OSC gets involved, effectively leaving the decision on how to discipline up to OSC and not the agency.

This bill moves on to the Senate next, so we’ll see what those 100 folks on the hill have to say about it all.

MSPB

January 7 marked two full years since MSPB had a quorum. That’s two years of Petitions for Review stacking up, day after day, added to the pile that can’t be issued as Opinions & Orders because the sole member, Acting Chairman Mark Robbins, needs at least one other member to make a quorum and issue decisions. Our estimates are somewhere between 1,600 and 1,700 PFRs waiting to be addressed.

You might remember, late last November the Senate Committee had a scheduled vote on the nominees the President had put forward. Senator Rand Paul refused to cast the vote that would have advanced them out of the committee and to the full Senate for a vote.

Well, if the news couldn’t be any stranger, last week the President re-nominated the very same three people to be Board members: Dennis Dean Kirk, Andrew Maunz, and Julia Akins Clark. At FELTG, we were scratching our heads and wondering what the heck was going on because Senator Paul is still on the committee. While the committee is made up of 8 Republicans and 7 Democrats, a “no” vote by Senator Paul would result in a 7-7 tie and the nominees would not be advanced. If he decides to abstain, then the Republicans would have a one-vote advantage and the nominees would be advanced to the full Senate for a vote, where the Republicans have a 53-47 advantage. Or, maybe a Democrat or two on the committee plans to vote “yea” as was almost always the case in these types of bi-partisan boards and commissions until very recently.

Who knows? We can’t predict the future but we WILL keep you posted.

EEOC

Amid all the shutdown talk, did you happen to see that EEOC no longer has a quorum of Commissioners? That’s right, out of a five-member commission only two remain because Commissioner Chai Feldblum was not re-confirmed. (Look elsewhere in this newsletter for details about that.) Last week the President re-nominated one person, Janet Dhillon, to serve as Commissioner but as of this writing, no confirmation hearing was scheduled.

The good(ish) news for you is that the lack of quorum at EEOC doesn’t have much impact at all on federal employees. The Office of Federal Operations, which is responsible for issuing decisions on EEOC Appeals, is still functional and Administrative Judges are still issuing decisions. Well, except not really … they’re all furloughed for now. So, if the government re-opens, EEOC will be mostly business as usual, besides, of course, the calendar nightmare of a month’s worth of missed hearings, pre-hearing conferences, etc.

FLRA

Chairman Colleen Duffy Kiko, who heads up the Federal Labor Relations Authority, recently decertified the employee union at FLRA. She reasoned that by having a union at FLRA, the agency was actually violating the labor relations statute it was created to enforce; because employees at FLRA work with federal labor relations law they should be excluded from being in a union, per the language of the statute. How about that? Our friends over at FedSmith have written about this in detail, if you’re interested in the nitty gritty.

OPM

The federal government’s central HR office, while itself partially impacted by the furlough, has offered some guidance on this (ridiculous) shutdown, including topics such as what happens to leave accrual for furloughed employees (spoiler alert: it stops) and how healthcare and retirement benefits are impacted.

Late in December, you may have seen that OPM posted template letters for federal employees impacted by the shutdown – letters that requested landlords allow tenants to barter services such as painting and landscaping in exchange for reduced rent. As you can imagine, it did not go over well, and OPM quickly withdrew the letters, stating that they were posted by mistake.

OSC

The U.S. Office of Special Counsel (not to be confused with Special Counsel Robert Mueller’s team) is closed during the shutdown. Its website has still been accepting online complaints but a disclaimer states that the complaints likely won’t be reviewed until after OSC reopens. So, whistleblowers can file but they won’t see an investigation until this all ends.

Unions

The federal unions, including NTEU, NATCA, and AFGE, are keeping busy with a lot to challenge, most specifically the fact that nearly half a million federal employees have been required to work without pay for almost a month. I saw an argument in a district court filing that said the requirement to work without pay was akin to involuntary servitude, which is a violation of the Thirteenth Amendment’s prohibition against slavery. NTEU is also challenging the recalls to work that were more recently issued to more than 40,000 IRS employees who were not considered essential in December but are being required to work without pay now.

So, there you have it. People usually start a new year with excitement and hope, but this one is sure giving us all some challenges.

At FELTG, we are doing our best to stay positive and stay available to answer your questions, provide you with content, and even do some training while we wait for the world to right itself again.

Take care, my friends. [email protected]

Irony and the EEOC: You Have to Read It to Believe It

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By Deborah Hopkins, January 23, 2019

The Equal Employment Opportunity Commission is now without a quorum. That’s right. As if no quorum at MSPB for more than two years wasn’t enough, and a multi-week government shutdown didn’t do it for you, EEOC is now helmed by only two out of a possible five Commissioners. Who’s left over there? Victoria Lipnic, a Republican, is the acting chair. Charlotte Burrows, a Democrat, is the only other remaining Commissioner.

But Deb, I thought the President reappointed Commissioner Chai Feldblum a year ago, to serve a third term?

Yes, In fact, he did. However, a few days ago, Commissioner Feldblum’s tenure at the EEOC ended. The reason? Senator Mike Lee (R-UT), has stated that he does not agree with Commissioner Feldblum’s positions on marriage and LGBTQ rights.

Nominations to EEOC are generally passed as a group by unanimous bipartisan consent, but Senator Lee made clear he would not vote yes to the confirmation.

The only other way Commissioner Feldblum could have been confirmed, then, would have been for Senate Majority leader Mitch McConnell (R-KY), to call for a full Senate vote – something he refused to do. The result? The nomination died.

Let me be clear: Senator Lee did not ever directly mention Commissioner Feldblum’s sexual orientation in his comments but rather focused his criticism on her views about same-sex marriage. But it is widely known that Commissioner Feldblum was the first open lesbian on the Commission, and spent a large part of her tenure advocating for workplace protections for LGBTQ individuals inside and outside the federal government.

While she served under the Obama administration, Commissioner Feldblum was involved in two groundbreaking cases: Macy v. Attorney General, EEOC Appeal No. 0120120821 (2012), which stated that a federal employee’s transgender status is protected under Title VII’s prohibition against sex discrimination; and Baldwin v. FAA, EEOC Appeal No. 0120133080 (2015), which stated that a federal employee’s sexual orientation is protected under Title VII. A number of federal district and appeals courts have ruled in the same manner for employees of private companies, though there is currently a circuit split on the issue.

Ironic, isn’t it, that more 2 million federal employees and countless private employees now have protections under the law for LGBTQ status – due in large part to Commissioner Feldblum’s tireless work – and now she has been essentially fired for the very same status she fought so hard to protect. And as a political appointee, she has no rights to appeal.

Commissioner Feldblum was also an advocate for disability rights, and co-chaired a bipartisan task force on sexual harassment at the EEOC. She also spoke at numerous EXCEL conferences and even worked with FELTG on a webinar discussing transgender discrimination and harassment. I can say without a doubt in my mind, that her voice on the Commission will be greatly missed.

So what now? Not only is Commissioner Feldblum out of a job (though not for long, I’d guess), EEOC now lacks a quorum. While AJ decisions are still being issued and federal sector EEO appeals are still able to be processed (after the shutdown, that is), some of the Commission’s work will be halted until there are at least three Commissioners seated. The EEOC may not be able to bring certain cases that would be costly, would have a broad reach or affect large numbers of people, or would consider a new question of the law or its interpretation. Other work may be delegated to the regional offices.

Though the impact of a lack of quorum is less significant on the day-to-day operations of federal workers, it’s still a source of frustration and not the way the agency was ever intended to operate.

What is happening in the world of federal employment law – and will the madness ever end? [email protected]

What Can a Supreme Court Justice Teach Us About Change?

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By Deborah Hopkins, January 2, 2019

Yesterday, as my last official event of the holiday season, I went to see a movie with a friend. Those of you who know me are probably not surprised to learn that my friend and I opted to see On the Basis of Sex, a film focused on Ruth Bader Ginsburg’s fight for gender equality as an attorney in the 1970s, long before she was a Supreme Court Justice. If you don’t recall the history or you haven’t seen the film, then you might be surprised to learn that the key legal case in this fight was a Tenth Circuit appeal over a statute that provided tax deductions for caregivers. Justice Ginsburg’s client was a male caregiver who was exempted from the tax deduction, while similarly situated women who were caregivers were allowed to claim the deduction. Justice Ginsburg viewed this issue as a violation of the 14th Amendment’s Equal Protection Clause, found in Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [emphasis added]

The apex of the movie focuses on her oral argument in front of the Tenth Circuit judges. I won’t spoil the film if you don’t know the real-life ending, but I can tell you the primary argument discussed change, and how the interpretation or reach of the law may need to change as society changes; after all, society doesn’t wait for the law to catch up to it before it charges ahead.

During her argument on the topic of gender protection, a judge challenges her: “The word ‘woman’ does not appear even once in the U.S. Constitution.” Justice Ginsburg’s reply: “Nor does the word ‘freedom,’ your honor.”

Now before you start kicking and screaming and writing emails telling me that Hollywood ruins movies by riddling them with inaccuracies, that the Bill of Rights actually does contain the word “freedom” and that the Bill of Rights is a part of the Constitution, just take a deep breath, count to three, and read on. I know the Bill of Rights uses that word, and I know that the Bill of Rights is part of the Constitution. I think the point being made in the argument is this: In the original text of the Constitution, the word “freedom” was never used, and as America grew and changed so did the reach of the Constitution, the highest law in the land. This growth included the Bill of Rights, which was added to the Constitution in 1791, four years after the original document was ratified.

The truth is, America changes every day. Women in America could not vote until 1920, when the 19th Amendment was ratified. Women in America were not given the legal right to serve on a jury until, in some states such as Mississippi, the late 1960s. (Interesting note: Mississippi was the first state to allow women to independently own property, in 1839. Go figure.) In some states, women could legally be denied the right to practice law until 1971. Women could not apply for bank accounts or credit cards unless a husband or male relative approved, until the passage of the Equal Credit Opportunity Act in 1974. And on and on it goes.

I have done all the things listed above, but had I been born century earlier I would not have been able to do any of them because the law forbade it.

Whether by Constitutional amendment, the passing of legislation, or the interpretation of the courts and administrative bodies, the law changes almost every day. While the movie may not be entirely historically accurate (after all, that’s Hollywood), it does highlight this reality. And though the focus of this film was the fight for gender equality, thousands of movies could be made, and articles written, about other struggles Americans have faced, and are still facing today, on the bases of categories that were not legally recognized until the very recent past: race, color, religion, disability, national origin, age, and genetic information, just to name a few. The fight continues.

And at FELTG in 2019, we promise to continue to bring you the most current information about the law as it pertains to you, and as it changes. It’s what we’re here for – after all, it’s in our mission statement.

Here’s to hoping 2019 is the best year yet, despite the rocky start, with whatever changes may come.  [email protected]

Who Says AWOL is NBD?

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By Deborah Hopkins, December 18, 2018

A couple of weeks ago, I was teaching a class to supervisors. The topic was discipline. We were discussing AWOL and how serious an act of misconduct it is to just not show up for work, and that, in some instances, a single incident of AWOL could warrant removal.

As is often the case, someone from HR was in the classroom. This person spoke up and said that there was an agency policy that said supervisors could not remove an employee for AWOL unless the AWOL exceeded 10 business days in a year.

Three thoughts went through my mind within a half-second:

  1. Are you kidding me? That policy, if there is one, tells everyone in the agency that AWOL is NBD (no big deal).
  2. Is there really a written policy, or is that one of the “This is the way we do it here” things that is actually NOT a policy? Show me the policy.
  3. So, no matter what happened as a result of the employee being AWOL, that employee gets 80 hours of freebies every year to just not show up? How would that work for an employee who is a surgeon with a patient on the operating table, or an air traffic controller, or a border patrol agent, or a security guard? I don’t even want to think about the harm that would occur in those cases.

AWOL is a pay status (or really, a non-pay status if you want to get technical), but it is also a labeled disciplinary charge. The elements of AWOL are:

  1. Employee was absent without authorization, and
  2. If leave was requested, the denial was reasonable.

Savage v. Army, 122 MSPR 612 (2015)

AWOL is Serious

More than once in my life, I’ve been stuck at work for hours after my shift when the person who was supposed to relieve me didn’t bother to show up. It’s never fun to be in that position. And despite what at least some folks think, AWOL is serious business on top of the inconvenience is causes. There is an inherent relationship between continuous unexcused absences and the efficiency of the service, since an essential element of employment is to be on the job when one is expected to be there. To permit employees to remain away from work without leave would seriously impede the function of an agency, impose additional burdens on other employees, and if tolerated, destroy the morale of those who meet their obligations. Ajanaku v. DoD, 44 MSPR 350, 355 (1990).

Indeed, MSPB has found, for the last 40 years, that even a few hours of AWOL warrants discipline, up to and including removal. In an early AWOL case following the implementation of the Civil Service Reform Act, the MSPB found that four unexcused absences totaling 17 hours in a one-week period warranted termination. Banks v. DLA, 29 MSPR 436 (1985).

AWOL for Employees Actually at Work

Did you know an employee can be AWOL even if she is at work? There are a number of situations that culminate in this kind of scenario. An agency may charge an employee AWOL for conducting personal business while on duty. Mitchell v. DoD, 22 MSPR 271 (1984). Discipline for sleeping on the job or wasting time is imposed in the same manner as discipline for AWOL. Golden v. USPS, 60 MSPR 268, 273 (1994). AWOL is the proper charge when an employee is ordered to another worksite (e.g. training), but instead reports to the regular worksite, or the employee remains on agency premises (e.g. lunch room), but not at the specified work location. Moreover, if an employee is insubordinate and is told to leave the work site until he agrees to follow directives, he is not on approved leave; he is AWOL. Lewis v. Bureau of Engraving and Printing, 29 MSPR 447 (1985).

Leave Restriction and AWOL

Though not a form of discipline, an employee removed for AWOL who has received a Leave Restriction Letter can be disciplined more severely than an AWOL employee who has not been given a leave restriction letter. This is probably most relevant in the “comparator employee” Douglas factor analysis. McNab v. Army, 2014 MSPB 79.

Disciplining for AWOL

You’ll need to do a Douglas factors analysis to determine what the appropriate penalty is for an employee who is AWOL. AWOL charges usually result in progressive discipline, particularly when the amount of AWOL is measured in hours rather than days and the harm is not great. Here’s the FELTG approach.

1st offense AWOL: Reprimand

2nd offense AWOL: Reprimand in Lieu of Suspension

  • Warn that a future act of misconduct will result in removal. This makes far more logical sense than suspending an employee (sending them home) when they didn’t bother to come to work.

3rd offense AWOL: Propose Removal

  • In Douglas analysis, Factor 1, emphasize harm:
    • Coworkers having to do the employee’s work
    • Services not being provided
    • Increased expenses
    • Anything else relevant

And there you have it. Remember, if the AWOL was significant in time or there was great harm or potential for harm in the absence, you can jump right to the removal. Good luck out there. [email protected]

Once Again, MSPB Nominees Fail to Get a Vote: What Happened Today? What Happens Next? 

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By William Wiley, Deborah Hopkins, Dan Gephart, November 28, 2018

 

The MSPB is hanging by a thread.

This morning, the Senate Committee on Homeland Security and Government Affairs recessed without voting on the three US Merit Systems Protection Board nominees. Sen. Ron Johnson, the Committee Chairman, told reporters that he decided to not bring up a vote after a 7-7 roll call vote on member Andrew Maunz. There was not a roll call vote on either of the two other nominees.

Wait, you wise FELTG readers are probably saying, “Doesn’t the committee have 15 members? And don’t Republicans have the majority?” Per a source, Sen. Rand Paul voted no by proxy, depriving the majority of an 8-7 vote. Sen. Paul opposes the existence of the MSPB, according to the source.The nominations of Chairman Dennis D. Kirk and Members Julia A. Clark and Maunz will be returned to the administration without a vote and the nomination process will have to begin all over again with a new Senate in January.

Meanwhile, more  than 1,500 cases in the MSPB backlog will go unaddressed. By the time the new Board members, hopefully, get confirmed sometime next spring, there will probably be about 1750 cases waiting to be adjudicated.

Hopefully is the critical word. Sen. Johnson, according to a source, will not review the nominations if they are resent next year unless he can get Sen. Paul or a Democrat to change their minds.Remember: Acting Chairman Mark Robbins, the sole remaining member of the MSPB, turns into a political pumpkin at midnight on March 1. His term will expire, and he cannot be renewed or held over any longer. Unless a miracle occurs in February, it’s likely that come March, the Board will be without any members for the first time in history.Meanwhile, FELTG has been told that there is a legal opinion floating around that if Robbins leaves and no Senate-confirmed Article II person is on board to replace him, then the MSPB as an agency goes out of existence.

Before today, not one nominee to be a member of MSPB was rejected at the committee level in the Senate. Today, that happened to three nominees. It is impossible to predict what will happen next, other than that the federal civil service will continue to suffer and employee appeals will continue to disappear into the gapping void that was formerly the US Merit Systems Protection Board.

These are sad times, indeed, for the federal civil service. With respects to John Donne: “No federal employee is an island, entire of itself; every employee is a piece of the civil service, a part of the main. If a single employee be washed away by the loss of oversight protections, the federal civil service is the less, as well as if an entire agency were, as well as if a position of thy friend’s or of thine own were: any employee’s loss of rights diminishes me, because I am involved in the civil service, and therefore never send to know for whom the bells tolls; it tolls for thee.”

Let’s Address the Misconceptions About Poor Performance

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By Deborah Hopkins, November 14, 2018

If there’s one thing that bothers federal employees more than anything, it’s slackers in the workplace. And if there’s something even worse than that, it’s the supervisors who refuse to deal with slackers in the workplace. I’m not making it up. Last month, OPM released a Federal Employee Viewpoint Survey that showed around 70% of federal employees do not believe that supervisors take the steps necessary to deal with poor performers. This isn’t breaking news; some version of this concept remains one of the highest negative ratings measured each year.

In the federal government, only about 5% of the 10,000-plus removals annually are for poor performance; the rest are for misconduct. But did you know that it’s almost always easier to remove a poor performer than it is to remove an employee who engages in misconduct?

But Deb, my HR office told me performance removals are really hard. They said I need months of performance tracking, then loads of evidence to start a PIP. Pus at my agency, we do 90-day PIPs, during which I have to double-check everything the employee does. Plus I have to give the employee a chance to get better every week. After all that, I need tons of evidence of all the failures during the PIP before I can even propose removal. I don’t have that kind of time.

Well, if all that were true I wouldn’t have that kind of time either. But that entire statement is full of myths. Ready for me to make your day? Read on.

Performance-based actions DO NOT require months of performance tracking. In fact, as long as the employee has been on her performance plan for around 60 days (known as a warm-up period), you can put her on a PIP (Performance Improvement Plan) after only one or two instances of unacceptable performance on any critical element. You do not need a pattern of unacceptable performance, or a minimum number of mistakes. Read the performance plan and look at the standards for “Unacceptable” on each critical element. Depending on how the plan is written, one instance of unacceptable performance may be enough to trigger the PIP.

Here’s an example:

Critical Element 1: Answers the telephone

  • Performance Standards

Acceptable: Answers within three or fewer rings

Unacceptable: Answers after more than three rings

As soon as that employee answers the phone after 5 rings, you can PIP her. Boom.

Putting someone on a PIP does NOT require tons of evidence. Did you know the amount of proof you need to put someone on a PIP is so low that there’s not even a name for it? At FELTG, we call it an articulation of the reason. So what does an articulation look like? “The employee answered the phone after five rings and the acceptable level is three rings or fewer.” That’s it. As a defensive strategy, we recommend making a note to yourself that day with what you observed, just in case down the road the employee challenges you on why you put her on the PIP; that contemporaneous documentation will be a helpful memory jogger and a solid piece of evidence for the judge or arbitrator to consider in addition to your testimony. Update: As of March 11, 2021, the agency is now required to show substantial evidence of unacceptable performance in order to justify the PIP – more than an articulation.

During the PIP you do NOT have to baby-sit your employee. The regulation requires you to “offer assistance” to the employee during the PIP. 5 CFR 432.104. Assistance is not doing the work for the employee, assigning a mentor, lowering the standard, or double-checking everything the employee does. We know from the case law that offering assistance means providing feedback to the employee during the course of the PIP. At FELTG, we recommend our legal clients meet once a week with the employee during the PIP, but the MSPB has found that even just one or two meetings during the course of a PIP meets the regulatory assistance requirement.

You do NOT have to give the employee a chance to improve during the PIP.  The name “Performance Improvement Plan” is really a misnomer that has caused all kind of confusion. Back in the early ’80s, OPM created the acronym “PIP” (first, Performance Improvement Period, then Performance Improvement Plan) in reference to the period mandated by law for a demonstration of acceptable performance prior to removal. It takes much less time for an employee to demonstrate whether he can do his job than to see if he can improve in doing his job.

President Trump’s Executive Order, referenced above, clarifies what the law says by dropping the concept of an “improvement” period for poor performers and instead uses the legally correct term “demonstration” period. So while most agencies still call it a PIP, the more correct terminology would be Opportunity Period (OP), Demonstration Period (DP), or what our friends at HHS are calling the Opportunity to Demonstrate Acceptable Performance (ODAP).

The PIP does NOT have to be 90 days. FELTG recommends a 30-day PIP regardless of the employee’s job type or GS level. Never, ever, ever in the history of the MSPB, even when former union attorneys were running the place, has the Board found a 30-day PIP to be too short. Towne v. Air Force, 2013 MSPB 81. If that’s not enough for you, take a look at the President’s May 25 Executive Order 13839, which says the performance demonstration period should “generally” be no more than 30 days. Why “generally”? Well, if your union contract requires 90 days, then you’re stuck with 90.

However, it’s perfectly legal to end a PIP early due to the error rate. See Luscri v. Army, 39 MSPR 482 (1989). For example, your employee is a security screener and the PIP says he cannot let any guns get onto an airplane, and on day 5 he lets a gun get onto an airplane. You can end the PIP there. Why on earth would you allow him 25 more days to let MORE guns onto planes? Which leads me to my next point.

Removal for failing a PIP does NOT require a high level of evidence. In fact, it requires less evidence than a misconduct removal. In performance, the level of evidence is called substantial. Substantial evidence is that which a reasonable person might accept [not would accept] to support a conclusion relevant in an unacceptable performance action – even though others may disagree. 5 CFR 1201.56(c)(1). So if you think the employee answered the phone on the fifth ring, that’s enough. You don’t need three witnesses, a customer complaint, and video evidence showing what she did. How about a squishy critical element like “Professional Conduct” that isn’t quantifiable? If you think the person’s performance is unacceptable as applied to the standard, even if another person might disagree with you, that’s enough.

Contrary to what you might hear or read, I actually don’t think the civil service system is broken and inefficient; it’s just being used improperly. Streamline the process and you, too, can get a poor performer out of the workplace in 31 days. We’ve done it hundreds of times in the last 40 years and would be happy to show you how. Your other employees will thank you, and America will thank you too. [email protected]

What a Chicken Sacrifice Teaches Us About Religious Accommodation

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By Deborah Hopkins, November 14, 2018

Let’s say your agency is working on a remote project somewhere and there’s a cargo plane that comes every two weeks to drop off supplies.

One of your employees asks you if the agency will allow a family member to bring a chicken to the airport at the point of origination, so the chicken can be flown, along with the rest of the cargo, on the next plane in. When you ask why, the employee tells you that she has a religious belief that requires a chicken sacrifice every fourth Friday, that her work on the remote project will still be in progress during the next required sacrifice, and she has no access to chickens in this remote place.

What do you do?

Hopefully, before you say anything about how strange you might think that is, or before you laugh the request off, you realize that this a request for religious accommodation and that the employee may be entitled to her request.

Here’s what we know from the law. Title VII requires federal agencies to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden (undue hardship) on the agency’s operations. This means an agency may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.

Religion is broadly defined and includes all aspects of religious observance and practice, as well as beliefs – and not just the major world religions we might think of. According to 29 CFR§1605.1, a religion does not have to be practiced by an organized group and includes moral and ethical beliefs as to what is right and wrong that are sincerely held with strength of traditional religious views. It also includes beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that “seem illogical or unreasonable to others.” EEOC Compliance Manual, Section 12-I, A-1.

The employee requesting religious accommodation has to do the following:

  1. Demonstrate she has a bona fide religious belief or practice that conflicts with work requirement
    • “Every fourth Friday I am required to make a chicken sacrifice, and I am scheduled to be working on this remote project next Friday, and no chickens are around for me to sacrifice.”
  2. Inform the agency of conflict
    • The employee told the supervisor, and asked for a chicken to be allowed on the plane.
  3. Show that the work requirement would force complainant to abandon fundamental aspect of belief or practice.
    • “These chicken sacrifices are a fundamental believe of my religion and if I don’t make this sacrifice I will be out of good standing with my faith.”

Now it’s on the agency to accommodate the request unless doing so would cause an undue hardship. The term undue hardship is not defined the same way in religious accommodation cases as it is in disability accommodation cases. When it comes to undue hardship in religion, we are looking at anything more than a de minimis burden.

The EEOC Compliance Manual § 12-I, C-6, gives us more detail:

To prove undue hardship, the employer will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve. An employer cannot rely on potential or hypothetical hardship when faced with a religious obligation that conflicts with scheduled work, but rather should rely on objective information … [A]n employer never has to accommodate expression of a religious belief in the workplace where such an accommodation could potentially constitute harassment of co-workers, because that would pose an undue hardship for the employer.” (emphasis added).

So let’s look at the request for the chicken to fly in on the cargo plane. Is it more than a de minimis burden for the chicken to ride in with the rest of the supplies, so the employee can perform her religious ritual on the day it’s required? Take another look at the undue hardship determination and then decide that for yourself. After all, this newsletter is a place for training information, not legal advice.  [email protected]

The Danger of a Bad Investigation

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By Deborah Hopkins, October 19, 2018

Have you ever conducted an administrative investigation? Depending on the allegations at issue, even if you haven’t yet, you might one day find yourself in a Sherlock Holmes hat and cape, tasked with discovering the truth.

You have the best chance of doing so if your job title is any of the following:

  • HR specialist
  • Law enforcement officer
  • Attorneys
  • Contract investigator
  • EEO specialist
  • IG or professional responsibility staff
  • Line manager

The characteristics of a legally sufficient investigation are that the investigation be prompt and objective; that all relevant witnesses be interviewed, particularly when credibility is at issue; that all relevant documents are reviewed; that the investigator follows up as information is collected; and that a fair analysis of the facts is given. California Labor & Employment Law Review, Vol. 28, No. 6, pp. 1-7.

Objectivity is really key here; if the investigator shows any bias, it undermines the entire investigation. One of the worst things that can happen to both an agency and an employee, is for an investigator to conduct a bad investigation. Whether it’s a misconduct investigation, an EEO investigation, a reprisal investigation, or another type, the results can cost the agency anything from a minor sanction to a sizeable settlement to default judgment – and it can cost the employee years of waiting for a final answer.

One of the lead cases we discuss in our Workplace Investigations Week training (next held in Washington, DC, November 5-9) is Whitmore v. Labor, 680 F.3d 1353 (Fed. Cir. 2012). In this case, the employee was fired. The agency said it was for misconduct. Mr. Whitmore alleged it was in reprisal for his protected whistleblowing.  The Department of Labor brought in an investigator who from the start showed extreme bias against the appellant. You should read the case for yourself (or come to our class) if you want the details, but among the highlights – er, lowlights – the investigator refused to interview any of the appellant’s witnesses, and also sent an email to a DOL official saying he would help the agency “kick [the whistleblower’s] ass this time.” It was such a bad investigation the agency ended up settling the case for $820,000 rather than go to a rehearing. Ouch.

In the discrimination world, EEOC has seen a number of bad investigations. Recently, in a complaint of disability and reprisal discrimination, the EEO investigator doing the investigation did not interview any of the witnesses identified by the complainant, which the Commission noted unfairly restricted the complainant’s ability to prove discrimination (ya think?). The Commission also said it would not have been unduly burdensome for the investigator to talk to those six witnesses (again, ya think?). There was no investigation into the complainant’s statement that he was not allowed to take annual leave in lieu of sick leave for his disability-related issues. This, said the Commission, was articulation of a denial of a reasonable accommodation that the investigator should have addressed, but did not. This case got remanded to the agency for a supplemental investigation.  Julius P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120162827 (Mar. 6, 2018) [TXT].

The complainant’s first contact with an EEO counselor was on March 2, 2015, and the new investigator is presumably only talking to his witnesses and investigating the denial of reasonable accommodation allegations now, coming up on four years after the fact. It’s unfortunate to all parties involved that years later, this matter in Julius P. is still not resolved, and all because of a bad investigation. Need more? Come to the classes. We’re here to help. [email protected]

 

FELTG Training is not Like Law School

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By Deborah Hopkins, October 19, 2018

If you’re like me, you don’t have the fondest memories of law school. Sure, there were classes I enjoyed and professors who challenged me (in a good way), but there were a lot of things I didn’t enjoy. I think I started my countdown to graduation before first-year orientation was complete. Among the worst memories are those times I was called on, required to stand up in front of 60 classmates, and grilled about the minute details of the assigned class reading as sweat rolled down my back and I internally prayed for a fire drill or power outage.

Those days are behind me. I still spend most of my time in a classroom, but I now have the privilege of being in the front of the room. I still have to answer questions and some of them are stumpers, but all in all I absolutely love teaching classes on employment law for FELTG and haven’t once had a nightmare about anything that has happened during one of our programs.

Participants often give feedback about our trainings and many times the feedback directly correlates to how FELTG training is nothing like law school. Here are a few of the recent areas that students have commented on.

FELTG doesn’t use the Socratic method. That’s right, we don’t. All of our instructors know the horror of the being put on the spot, so we will never do that to you in any of our classes. We will ask questions and see if anyone would like to answer because we love in-class discussions, but we won’t ever force you to stand up and talk about what you know – or reveal to the class that you don’t know anything because it’s your first week on the job. Rest assured that when you come to our classes, you don’t have to say a word all week, if you don’t want to.

FELTG’s intent is to teach you, not screen you out for failure. We’ve all seen the bad movie that takes place in law school. On day one, the professor uses some version of this speech: “Look to your right and to your left. At the end of this semester, one of the two people next to you  – or maybe it’s you – won’t pass this class and will be kicked out of law school.” Well, at FELTG it is not our goal or desire to kick you out or to have you fail the class. Our goal is to teach you things – law and strategy – that you might not have known, in order to make your job easier and the government run more efficiently. And if you earn CLE or HRCI credits and happen to have fun while doing it, then we consider the class a success.

There is no homework or pre-reading required. Some participants of FELTG programs have been in the business a long time, while others come to training right after starting a career (or career change) in federal employment law or federal supervision. With that understanding, we never give you a reading list or pre-work for any of our seminars. You can show up on day one with zero knowledge, and you will be just as welcome as if you have 20 years of experience litigating before the MSPB or EEOC. One of the most common things our participants say is that they always learn something new from our classes.

We don’t have forced group projects. We won’t do that to you. There are times you have the option to have group discussions or mini-workshops, but if you prefer to work alone, that’s no problem for us. (Exception: Our MSPB and EEOC Hearing Practices Week requires you to work with your litigation team to prepare and deliver a hearing in front of a judge, so you do have to work with others a bit during this class.)

All questions are welcome. There are no stupid questions, and our instructors will assure you that all questions – no matter how silly or basic you think they are – are welcome in our classes. After all, if you’re thinking it, chances are that at least a handful of your other classmates have the same question. So ask away!

There are no final exams. FELTG offers an optional Federal Employment Law Practitioner Certification for a number of our classes but we NEVER require participation, and the testing mechanism takes the form of quizzes rather than exams. The longest quiz takes about 15 minutes to complete, so there’s no reading period required.

We have fun. Yes, it’s true; we have fun during class. We love what we do, and our instructors will make you laugh by telling jokes, or talking about details from wacky cases. The best part of our business is that we never have to make anything up. Any wild scenario you can imagine has happened in some agency, somewhere, over the last 40 years.

Don’t take my word for it; come to a class and check out why FELTG training is different from any other training you’ve ever attended.

We’re now taking registrations for 2019 classes. We hope to see you soon.

[email protected]