If the EEOC Orders Training, Who Ya Gonna Call?

, , ,

By Michael Rhoads, January 11, 2022

No one is perfect, and mistakes are bound to happen over the course of a career.  So, what happens when a manager is found to have made a mistake related to an EEO complaint?  Occasionally, the EEOC will order training for the supervisor in question or, if the behavior is pervasive throughout agency, for all supervisors.  The goal is to make sure everyone is in compliance with the law. Some recent EEOC cases are a good reminder that no matter how many times you say something, it’s best to mind your Ps and Qs to avoid getting yourself and your agency in trouble.  Below are some recent cases from the EEOC which serve as a good reminder of what you can and can’t say, and what should be avoided at all costs.

No Substitute

In Foster B. v. Department of Health and Human Services, EEOC Appeal No. 2019005682 (April 12, 2021) the Complainant, a supervisory health system specialist, filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of sex (male, sexual orientation) and disability.  An employee working under him used sex-based epithets against gay men several times over the course of two years.

The complainant’s supervisors encouraged him to file an EEO complaint but did nothing to stop the employee’s discriminatory behavior. The EEOC found that the agency’s lack of discipline emboldened the employee to continue with the epithets. The employee used the epithets in the presence of the complainant’s supervisor and other employees on several occasions.

The EEOC found the agency did not provide a clear complaint procedure. The most important lesson to learn from this case is, “… the EEO process is not a substitute for the Agency’s internal process.” The law is the foundation, but the agency still needs to come up with an actionable plan to assist employees with processing EEO complaints.

The EEOC also ordered the supervisors to attend eight hours for training related to eliminating harassment in the workplace.  FELTG is holding a session on Wednesday, March 9, 2022, from 1:00-3:00 ET, Honoring Diversity: Eliminating Microaggressions and Bias in the Federal Workplace.

Thrown Under the Bus

In Jane H. v. Dept. of the Air Force, EEOC Appeal No. 2020003198, (May 19, 2021), an employee filed 19 complaints, which the Agency investigated. The complaints alleged that the agency subjected her to a hostile work environment over a five-year period on the bases of sex (female), and reprisal for prior protected EEO activity.

The hostile work environment complaints are related to the behavior of two co-workers and the complainant’s supervisor.  Some of the behavior included:

  • The complainant’s computer software folder was intentionally deleted
  • The complainant was taken off overtime shifts
  • Items were stolen from the complainant’s desk
  • A large trash can and dead bugs were left on her desk
  • A co-worker repeatedly made loud noises “causing complainant to have a panic attack and seek medical attention.”

However, the both the AJ and the EEOC found the hostile work environment claims by the complainant to be unpersuasive. “Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor.”

However, due to one errant comment by the supervisor, the EEOC remanded the AJ’s finding of no discrimination on the bases of reprisal back to the agency for further processing. The EEOC also ordered the supervisor to attend eight hours of EEO training.  The comment from the supervisor was in response to a request from the complainant for union time. “[The Chief] and I were both thrown under the bus due to your EEO complaint. If I don’t give you time, you’re just going to file a grievance.”

But for this one comment, the Agency’s case would stand.  We’re all human, however, supervisors are held to a higher standard when it comes to the words chosen when addressing an employee. Don’t let hurt feelings hurt an EEO case by using chilling language toward a complainant.   Understanding how to avoid retaliatory situations like this is where FELTG shines.  We will offer Stop the Spread of COVID-related Retaliation in the Federal Workplace on January 19 from 1-2:15 pm ET.

As we begin 2022, let this be a year of increased understanding and thoughtfulness between all employees. We at FELTG are here to offer the right training and guidance to help you avoid common EEO pitfalls and mistakes.  Stay safe, and remember, we’re all in this together. [email protected]

2022: An Office Odyssey – The Workplace of the Future is Already Here

, ,

By Dan Gephart, January 11, 2022

Science fiction writer Arthur C. Clarke once said: “Trying to predict the future is a discouraging, hazardous occupation.” It’s hard to argue against the Space Odyssey series author when you read what people once predicted the workplace of the 2000s would look like.

  • Fifteen-hour workweeks?
  • Seven weeks of vacation?
  • The disappearance of the letters c, x, and q?

It’s hard to pick the prediction that’s most ridiculous.

Yet, Clarke himself made some amazingly prescient prognostications (watch the YouTube video) back in 1964, when he suggested (again, he did this nearly 60 years ago) that remote work and instantaneous communication would be the norm.

Well, welcome to 2020s, Ghost of Sir Arthur C. Clarke. Your predictions were right on the money. As we ease our way cautiously into 2022, we look at what today’s workplace experts are predicting for this year and the challenges this new workplace will create.

Hybrid workplaces

Every workplace expert agrees: Remote work is here to stay. In its workplace re-entry guidance last summer, OPM suggested that agencies “take this opportunity to adjust their telework policies to reflect a new understanding about how telework has worked at their agencies.”

That doesn’t mean you need to turn off the lights and lock the office doors behind you. The physical workspace won’t disappear any time soon. The word of 2022 will be … say it with me: hybrid.

Ultimately, however, the performance success of a hybrid work environment will come down to managers and supervisors. Based on anecdotal evidence over the past year, there are quite a few Federal supervisors out there who aren’t yet up to this challenge.

As the hybrid model becomes entrenched, supervisors need to avoid what workplace experts call the “two-tiered workforce.” That means ensuring equity between employees who report to the office and those who work remotely, sharing consistent messaging, and holding all employees equally accountable for performance and conduct, regardless of where they physically work.

FELTG can help you with that. We can bring courses directly to your team with guidance on improving your management and communication skills, providing employee feedback, setting expectations, and taking the appropriate action for performance and conduct deficiencies. Or you can join FELTG President Deborah Hopkins on February 9-10 for UnCivil Servant: Holding Employees Accountable for Performance and Conduct.

Office space

As employers across America move to a hybrid environment, you will soon start hearing (that is, if you haven’t already) about physical changes to the workplace. With less need for face-to-face time, some private sector companies are already re-designing their workspaces. This could mean fewer offices, as workplace experts predict more “we spaces” and fewer “me spaces.”

That won’t be an easy transition in the Federal government. Labor battles have been literally fought over inches of office space.

It’s not a particularly easy time for unions and management, dealing with whiplash of extreme labor relations positioning. Rebuilding management-labor relationships will be key in the upcoming year. Get yourself prepared for this year by attending Navigating Federal Labor Relations in 2022 tomorrow (January 13) from 1-3 pm ET.

The ‘Great Resignation’

In, perhaps, the most surprising trend to come out of the pandemic, a record number (millions per month) of employees voluntarily left their jobs in the past year. Well, it was surprising to many people, but not Texas A&M Professor Anthony Klotz, who not only predicted it two years ago, but actually coined the term “Great Resignation.”

So far, the “Great Resignation” hasn’t hit the Federal government. But experts predict the trend will continue, and Feds are certainly not immune. Now is the time to look over your most recent FEVS results.

What are you doing right by employees? What kind of workplace culture have you created in your unit? Will you continue to make telework an option once the pandemic ends? Do your employees feel like they have a good work/life balance? Do your supervisors hold employees accountable for performance and conduct?

These are all factors determining whether your best employees will soon be putting your agency’s name under Recent Employment on their CVs.

But let’s flip this around. Let’s think about this trend as the “Great Opportunity.” There is a lot of talent out there that is now available and there is still a lot that a Federal job can offer. But you need to know where to find the talent, and it’s not always is the same places. “Go to where the candidates are,” FELTG Instructor Marcus Hill said last year. Consider social media, online forums, and visiting colleges and universities that aren’t usually on your list.

Just because we know what the near future holds doesn’t make it any easier. Good luck this year with all your efforts in making your portion of the Federal workplace a model employer. [email protected]

The Year in Review: Top FELTG Newsletter Stories of 2021

,

By Dan Gephart, Training Director

Since 2018, our year-end News Flash has unveiled the most popular FELTG newsletter stories (based on the number of reads and forwards) of the previous 12 months. Usually, our most-read stories mirror FELTG Nation’s deep interest in the topics of performance, conduct, telework, and reasonable accommodation. This year was very similar, but the context within which we discussed those topics was unique, to say the least.

The year was only six days old when a violent mob stormed the Capitol, assaulted Federal law enforcement, and nearly ended the peaceful transition of power which we’ve all taken for granted. As the year ends, the ominous Omicron variant is spreading across the country and further delaying efforts to get employees back into the physical workplace.

In between those two events, FELTG and the entire Federal EEO Community lost a true giant when Ernie Hadley suddenly passed away in April. Ernie was a founder and the first President of FELTG. He wrote more than a dozen books – not just any books, but the foundational legal texts of Federal EEO law. He was brilliant, funny, and compassionate – a lover of cars, sports, music, literature. He cared deeply about civil rights. He was unafraid to change directions late in life to pursue a career in publishing.

It was a difficult and often dark year, but there were some bright spots throughout, and you – the Federal workforce – continued to do important work under trying circumstances. To better represent the constantly changing up-and-down nature of 2021, we’ve decided to frame this feature as a month-by-month look at the most-read stories.

January

For the second straight year, a photo of the U.S. Capitol graced FELTG President Deborah Hopkins’ introduction to our January newsletter. But what a difference a year made. The bucolic long shot of the Mall with the Capitol in the background circa 2020 was replaced this year by a photo of an angry mob of insurrectionists wrestling barriers away from the Capitol police (photo below).

Our most-read story in January was: Can Agency Fire Employee Who Took Part in Capitol Siege? You Decide. It’s not surprising that Deb’s story about disciplining Feds who may have taken part in the riot received so many views and forwards. Off-duty misconduct is a perennial challenge. Meanwhile, our second most-read article Requiring Vaccinations? Follow EEOC Steps to Avoid Discrimination, written by special contributor Frank Ferreri, distilled early guidance for agencies hoping to bring employees back to the workplace. Those hopes were eventually dashed, and we’d see guidance updated throughout the year.

February

Extreme political polarization has created rifts in businesses across the country. Unfortunately, the non-political Federal workplace was not immune. Our most-read article of February Does Saying ‘All Lives Matter’ Create a Hostile Work Environment? resulted, as is the case with many of our articles, from specific questions we received through our Ask FELTG feature and in our training sessions.

The second most-read article of the month details the story of an EEO director removed from her position and reassigned to another office with no involvement or influence over EEO. Why? Revisit Barbara Haga’s Director of EE Oh No! When HR Practitioners Fail to Perform.

March

The Federal Circuit’s decision in Santos v. NASA this March was a stunner. The court said that an agency must have substantial evidence that the employee was performing poorly before it is allowed to put the employee on a PIP. Just days after the decision, Deb’s story Say Goodbye to 40 Years of Case Precedent: Agencies Must Justify PIPs broke down Santos, highlighting what’s changed and, just as importantly, what hasn’t.

In the next most-read story EEOC Decision Details Everything a Manager Should Not Do, Meghan Droste dug into another recent decision. Thomasina B. v. Department of Defense serves as a textbook case of everything an agency should not do in a harassment case.

Two recent decisions. Two thoughtful, analytical, and guidance-filled articles. If you know someone who isn’t subscribed to the free FELTG Newsletter, share this link (https://feltg.com/) with them and tell them to scroll to the bottom of the page and subscribe. They will thank you.

April

In memory of Ernie Hadley’s passing, we republished his 2013 article Are You a Microaggressor?. It was our second most-read story of the month. With microaggressions now a major training point in the EEO arena, it proved what we all knew: Ernie was years ahead of the curve.

Our most-read article in April was Deb’s tale about a disruptive service dog who also may not have been very good at her job – The Golden Doodle Who Wouldn’t Nuzzle: A Service Dog or Not?

May

Do you remember the hopefulness of May? Like many Americans, I had recently received my second vaccination and thought we were closing in on that thing we kept calling “normalcy.” Agencies agreed and started preparing for their employees to return to the workplace, keeping in mind that many would want to continue working from home. We shared 4 Tips to Prepare for Increase in Requests for Accommodation, Telework and it was our most-read story of the month. Meanwhile, Deb shared some great advice for how to handle SESers when they break bad – What You Should Know About SES Discipline.

June

Summer brought us another report from so-called experts pushing for at-will Federal employment – A Schedule F Look-alike Rears Its Ugly Head. In June’s most-read story, Deb reminded everyone that we don’t need civil service reform. Just follow the rules and hold employees accountable. If you’re not sure how to do that, you don’t need some “think piece” to tell you what to do. Just attend the next UnCivil Servant training on Feb. 9-10.

In our second-most read article, Meghan’s Tips From the Other Side: Retaliation is a Very Real Issue discussed the importance of training to avoid reprisal. This issue is as timely as ever as EEO offices deal with the influx of complaints related to vaccine exemption requests. Join us on January 19 for the webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace.

July

Some people (I won’t say who) are predicting that we’ll have a fully functioning MSPB next year. But on that great day when a quorum returns to the Board, the new members are going to find they have an “unprecedented Herculean task” ahead of them, as FELTG Past President William Wiley put it in the most-read story of July – The To-Do List for the New MSPB Board Members.

In Should Your Agency Use Progressive Discipline or Performance Demonstration Periods With Probationers? – the second most-read article of the month – Deb answered the question in the headline with both a short answer (No!) and a long one.

August

The rates of vaccination were continuing to rise and there was hope that it could lead to a return to the physical workplace. The VA announced that some employees would be required to get COVID vaccinations. And then the backlash erupted. (This was before the vaccines were mandated via Executive Order). Government-wide, Federal EEO and HR professionals started to worry. Ann Boehm’s The Good News: If Feds Want to Force You to Discipline Them for Disobeying Mask and Vaccine Rules, You May Do So, the most-read newsletter article of August, explained how and why (based on the information available at that time) to discipline those who refused to get vaccinated.

Speaking of the VA, the Federal Circuit hit the agency with a shocker in August. In Undoing the Last Four Years: Federal Circuit Clarifies the Burden of Proof in VA Discipline, Deb explained what the Fed Circuit decision means for disciplinary actions at the VA.

September

Following President Biden’s Executive Order 14043 requiring all Federal employees to be vaccinated against COVID-19, FELTG customers had questions. Our most-read story in September was Now that Vaccines are Mandated for Federal Employees, Can You Ask an Employee to Provide Your Agency with a Copy of Their Vaccine Card?

The second most-read story – Well, Excu-u-use Me! Sometimes, Feds Say the Darndest Things – stemmed from Hansen v. DHS, No. 2017-2584. An agency proposed removal after an employee’s positive drug test for marijuana. The employee argued that he didn’t know he consumed a pot brownie at a party. He thought he felt funny from a bad bratwurst, to which the EEOC basically said baloney. [Hansen will be discussed during the 60-minute webinar High Times and Misdemeanors: Weed and the Workplace on March 3.]

October

As the vaccine mandate took hold, we heard from many of you with questions about how to handle specific scenarios. The most-read story in October – So About That Employee Who Gets Vaccinated After Being Removed – addressed one of the most likely scenarios.

After Rep. Carolyn Maloney (D-NY) asked the Government Accountability Office to look at reforming the Federal EEO process, Ann Boehm jumped in with her thoughts. The Federal EEO Process is Broken: Can We Fix It? was the second-most read story of the month.

November

Questions about the vaccine mandate continued in November. Our most-read article – Is Removing Fed for Lack of Vaccination a Potential Due Process Violation? – addressed a very real concern.

In our second most-read article, Deb highlighted a recent case involving a USPS letter carrier. The EEOC decision sent a clear message: Partially accommodating an employee without considering all his/her/their restrictions is not reasonable accommodation at all. Read about it in The Word ‘Reasonable’ Is Half of Reasonable Accommodation.

December

Time and again, we’ve told you: Issuing a letter of caution, warning, expectation, or concern, is more trouble than it’s worth. Deb explains how one of these “lesser letters” came back to haunt an agency in our most-read story of December A Letter of Caution Can Equal Reprisal – or, Another Yellow Donut Case.

And, of course, our second-most read story dealt with the vaccine mandate – Updated Guidance on Vaccine Refusals Just in Time for the Holidays.

If you’re scoring at home, that’s seven months where one of the top two most-read stories involved vaccine mandates. And in the hours after that updated guidance story was published on FELTG’s web site last week, a Federal judge in Georgia issued an injunction on the vaccine mandate for Federal contractors.

I’m sure vaccine mandates and other pandemic-related issues will continue to present challenges for the Federal workplace in the upcoming year. As we did in 2021, FELTG will continue to steer you through those challenges with the most up-to-date guidance.

Happy holidays and best wishes for a great 2022! [email protected]

A Letter of Caution Can Equal Reprisal – or, Another Yellow Donut Case

, ,

By Deborah Hopkins, December 7, 2021

We have long taught that issuing a letter of caution, warning, expectation, concern, and the like can cause more problems for agencies than it’s worth. A supervisor can caution, warn, set an expectation, or express concern for an employee verbally, then follow it up in an email, and achieve the same purpose, while lessening the likelihood of a grievance or complaint being filed. At FELTG, we refer to these types of documents as lesser letters, or more memorably, the yellow donut.

There are too many cases where agencies have spent hundreds of thousands of dollars, plus time and years of effort, defending these documents before various third parties. These documents don’t have any legal substance or definition and don’t even count as disciplinary actions. Just to get you started, see, Meaghan F. v. SSA, EEOC Appeal No. 0120152932 (November 2, 2016); Huddleson v. USPS, EEOC No. 0720090005 (2011) Massie v. DoT, 2010 MSPB 106; Ingram v. Army, Fed. Cir. No. 2015-3110 (August 10, 2015).

A few days ago, I came across a fairly recent EEO case that confirms the above: Will K. v. USPS, EEOC Appeal No. 2020000109 (Oct. 26, 2020). Among other claims raised, a USPS Operations Industrial Engineer alleged retaliation for protected activity after his supervisor discussed with him several performance concerns. The supervisor issued a Letter of Concern (LOC), which recapped the discussion. If you’re thinking that an LOC is not discrimination or reprisal and the supervisor did nothing wrong here, you’re correct in general. But it all depends on what is in the LOC. If the content includes a mention of events related to previous protected activity, the agency has a big problem.

In this case, the LOC contained a list of areas where the supervisor was concerned about the complainant’s performance, including:

  • Mentioning that the complainant “claimed work-related illness/injury for stress” [which is an employee’s right, under workers’ compensation laws];
  • References to a previous EEO settlement agreement; and
  • An indication that the complainant “claimed discrimination and harassment at work, currently being investigated.”

The AJ granted summary judgment to the agency. On appeal, the EEOC found the reference to the Complainant’s protected activity was per se retaliation. Including this type of information in a Letter of Concern is “reasonably likely to either deter Complainant or others from engaging in the EEO process. Therefore, although Complainant ultimately has not demonstrated that the LOC itself was unwarranted, the Agency is still liable for per se retaliation with regard to some of the language used in the LOC.”

With exemption requests to the COVID vaccine requirement indicating protected activity under the EEO categories of disability and religion, we want to help your agency handle these cases properly and avoid even the hint of retaliation.

So, send all your supervisors, HR and EEO staff to the January 19 webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace, and we’ll show you how. [email protected]

The Good News: A Letter to Santa 2021

, ,

By Ann Boehm, December 7, 2021

Dear Santa:

I hope you and Mrs. Claus had a good year, despite the continued pandemic. I guess you’re happy to have your own elf labor and reindeer transportation, since the supply chain appears to be a problem now.

I think I should be on the good list this year. I have decided that I won’t mention the pony this year, even though a pony would be really neat. And since I’m not asking for a pony, I hope you will help me with some other things I really want for Christmas. Here they are.

1. A revised Federal EEO process.

Yes, Santa, I know that the pony would probably be easier than this, even with the sleigh limitations. But this one would really help EEO complainants and Federal agencies.

2. Senate-confirmed MSPB Board members.

Santa, please stop laughing. This one is serious. No quorum at the MSPB since January 2017 is getting a little silly. The three nominees are through committee and just waiting for confirmation. Can you help?

3. Senate-confirmed FLRA members and General Counsel.

There are three FLRA members, but two are on expired terms. It would be bad for the FLRA to go the way of the MSPB and not have a quorum. And the Acting General Counsel can only serve for so long. Not having a General Counsel means no ULP processing, and that’s a bad thing. Two FLRA nominees and the General Counsel nominee are through committee and waiting for confirmation. Please help with these nominations, too.

4. Acknowledgment from this Administration that pro-Union doesn’t mean pro-bad employee.

The Biden Administration is really pushing agencies to encourage union membership and work with bargaining unit employees. That’s a nice theory, but too often unions take the side of the toxic, draining employees at the expense of the effective, hard-working employees. Santa, it would be great if you could help everyone understand that bad employees are bad employees, regardless of their bargaining unit status.

5. Progressive discipline (reprimand, suspension removal) even for non-vaccine disciplinary cases.

Santa, we here at FELTG have taught about progressive discipline for a very long time. Sometimes agencies don’t always believe us when we tell how it works, and then bad employees stay employed for far too long. The vaccine mandate has highlighted how progressive discipline works. I would like to ask you to make sure agencies (and this Administration) understand that progressive discipline is appropriate to use for all misconduct cases (unless misconduct is bad enough to remove an employee in the first instance—and yep, that can be appropriate).

6. More in-person training.

It’s been amazing to be able to train agencies virtually during this bizarrely long pandemic crisis. But I do miss the in-person interaction. I’m fully vaccinated and willing to travel. If any agencies want in-person training, I’m ready to roll.

7. A pony.

OK. I said I wouldn’t ask, but I have to keep trying. Stay safe, Santa. Merry Christmas and Happy New Year! Ann

[email protected]

Updated Guidance on Vaccine Refusals – Just in Time for the Holidays

, ,

By Deborah Hopkins, December 7, 2021

While the federal mandate for COVID-19 vaccination had a compliance rate of more than 97% from civilian and military personnel as of the end of November, there are still a number of personnel who have not complied with the Executive Order or requested an exemption. The deadline for compliance of civilians was November 22. Until a few days ago, the guidance from the administration had been that agencies should begin the process of counseling, then quickly disciplining, employees who refused to comply.

Perhaps, as a direct result of requests for delay by labor unions, the Safer Federal Workforce Task Force updated its guidance on discipline for vaccine refusals, encouraging agencies to counsel and educate employees on the benefits of vaccination for an “appropriate period” of time rather than the 5 days previously recommended.

In an email to agencies, OPM more closely defined that time period by advising agencies to refrain from suspensions until after the holidays. This timeline aligns more closely with the January 4 deadline the administration set for federal contractors to be fully vaccinated against COVID-19.

The Task Force guidance also included a new suggested step in the disciplinary process of noncompliant employees — the reprimand.

If the employee does not demonstrate progress toward becoming fully vaccinated through completion of a required vaccination dose or provision of required documentation by the end of the counseling and education period, agencies may issue a letter of reprimand, followed by a short suspension (generally, 14 days or less).

Reports from the end of November revealed that some agencies were already beginning the disciplinary process for employees who did not comply with the vaccine requirement. Most of those actions will likely be held in abeyance, but the email from OPM does not say agencies are prohibited from disciplining certain noncompliant employees before the end of the year.

According to a November 29 article by Government Executive, OPM’s email said “We understand that your agencies may need to act on enforcement sooner for a limited number of employees, such as where there are additional or compounding performance or workplace safety issues under consideration, but in general, consistency across government in further enforcement of the vaccine requirement after the start of the new calendar year is desired,” they wrote. “We believe this approach is the best one to achieving our goal of getting the federal workforce vaccinated.”

I’m sure this is frustrating for some of you who had already begun work on the disciplinary process and is welcome news to others who are inundated with discipline issues. Wherever you might be, and however you might feel about the vaccine requirement, FELTG thanks you for your service to the American people and promises we will keep you posted as new developments arise. [email protected]

Performance System Failures: Lack of Feedback, Poorly Written Narratives

, ,

By Barbara Haga, December 7, 2021

Picking up from last month’s column, we look at who’s responsible for setting the stage for feedback to take place and what a good narrative should include.

It’s common to find language in agency appraisal plans that sets out requirements for which official(s) are responsible for ensuring that feedback is provided to employees and that it is usable feedback.

Most agency plans assign responsibility for ensuring that the appraisal program operates as it should to the head of the component, installation, or operating division. The DoD Instruction on the Performance Management and Appraisal Program (DOD 1400.25, Volume 431) states on page 5 that DoD Component Heads (think Army, Navy, Air Force) are responsible for overseeing “the implementation, application, and evaluation of performance management programs within their respective Components.”

That’s an incredibly broad statement. However, included within it is ensuring that supervisors provide required feedback and that narratives actually contain documentation of accomplishments around the elements that are designated in the plan.  Usually, this responsibility would be delegated further down the line to subordinate levels of managers until we get to raters and reviewers. Here is the language regarding those officials from the HHS Performance Management Appraisal Program (430-1, Sections VIII and IX):

HHS – Rating Officials

  • Manage the full performance cycle from:
    • Clearly communicating expectations to holding employees accountable
    • Monitoring performance to providing regular feedback

HHS – Reviewing Officials

  • Implement performance management policies and practices within the appropriate span of control
  • Ensure that Rating Officials (ROs) carry out their performance management responsibilities within established deadlines and evaluate Rating Officials to ensure accountability for HHS’s PMAP

Here is where the rubber should hit the road. The requirement for the feedback sits squarely on the shoulders of the supervisor, but the enforcement comes from the reviewing level. Yet, I’ve heard countless stories of managers not carrying out these responsibilities without any consequence.

System Failures

Many years ago, I helped an agency rewrite all of their performance elements and standards. It was not a large agency. Also, they had a lot of employees who were attorneys who did the same work, so the task wasn’t as monumental as it might sound. (Don’t get excited, it wasn’t the MSPB). I led a group of employees and a supervisor and a union official who worked on the content of the elements and standards. That part worked great. What they told me about how ratings were done was shocking. I’ve seen a lot more since then and likely wouldn’t be as shocked now.

Here’s their story. I don’t know how many were in this situation, but it was common enough that all of the employees on the team said: “Oh, yeah. That’s how it’s done here.”

The managers of these attorneys, paralegals, and other support staff would not meet with them to discuss ratings. Ever. They would prepare the ratings and wait until the employees left for the day and put the ratings in the employees’ chairs with a note saying basically “sign this and give it back to me.”

I was going to do a briefing for the managers to introduce the new plans and get their feedback on them. I was also covering some basic provisions of the appraisal system in that briefing.  Some of the team members made a slide for me to include that had a red stop sign shape with the words, “Stop Drop and Sign” in white letters across it. They were asking me to tell their supervisors to stop leaving appraisals in empty chairs and not discussing them.

These supervisors were very high level, so the threat of rating them lower because of their failure to provide at least a minimum amount of feedback wasn’t a threat. Apparently, there was no requirement coming from above these supervisors to meet their responsibilities as set in the agency appraisal system.

Another System Failure

The same agency asked me to come back the next year. Their headquarters had told them they had too many Level 5 ratings and they needed to actually write a standard for Level 5. It was my brilliant idea that if I reviewed a sample of those Level 5s, maybe those managers would have done a good job of writing down what a 5 looked like and they would already have done a lot of the work for me.

So, I reviewed the sample. In some cases, they did a good job.  In others, I wanted to cry. After all the work of the team getting the standards done, the training I did on how they should be used, and what their own agency plan required, I found all sorts of problems.

The worst one was written to support a Level 5 on the element about their writing of appeal decisions. The element set measures about adequately researching issues, properly citing precedent cases, writing clearly, raising issues in advance if there was a legal issue that needed to go to their headquarters before the decision could be finalized, and so on. The appraisal for one of the GS-13s started off with a sentence about writing appeal decisions followed by this:

In addition to the outstanding work Mary does for the XXXXXX Branch, she has also volunteered and has done an excellent job in organizing a number of functions for the XXXXXX Division, including the end of year pizza party, after work socials, the end of year Holiday Party, and …

That rating had been approved by the reviewing level and an award paid, at least in some part, based on being the Division party planner. I helped write those elements and standards and I promise there was no event coordinator duties covered in those plans. It does cause one to wonder sometimes.

Next time, we talk about what documenting ratings should be about.

COVID Retaliation: What You Need to Know

, ,

By Michael Rhoads, December 7, 2021

Last month, the EEOC updated its guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws under Section M. Retaliation and Interference. The anti-retaliation protections outlined in the guidance only apply to the exercise of rights under the federal EEO laws.  The questions and corresponding answers are meant to guide federal agencies when considering the rights of job applicants, employees, and former employees in connection with COVID-19.

Some of those questions are below, along with our thoughts and EEOC’s answers:

Do job applicants and employees (including former employees) have protections from retaliation for exercising equal employment opportunity (EEO) rights in connection with COVID-19?

According to the EEOC guidance: “Speaking out about or exercising rights related to workplace discrimination is called ‘protected activity.’ Engaging in protected activity, however, does not shield an employee from discipline, discharge, or other employer actions taken for reasons unrelated to the protected activity.”

For examples of COVID retaliation join Katherine Atkinson on Wednesday, January 19 from 1:00-2:15 PM ET for the webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace

Who is protected from retaliation?

The retaliation protections apply to all types of employees including full-time, part-time, probationary, seasonal, and temporary. It is also important to note that an employee’s or applicant’s citizenship or work authorization status is not a factor when considering retaliation protections.

When do Retaliation protections apply?

Always. When considering retaliation protections, consider whether the employee or applicant has a reasonable belief that an EEO law has been violated in the workplace. The employee or applicant must also come forward with those beliefs in a “reasonable manner.”

When is an employer action based on an employee’s EEO activity serious enough to be unlawful retaliation?

This is the hardest question to answer, but if it looks like a duck, and quacks like a duck, it’s a duck.  Per the EEOC’s guidance: “Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity.” Examples include suspensions, denying a promotion, negative or less than favorable evaluations, and transfers. Retaliation can also take place outside of the workplace. An action by the employer is still considered retaliatory even if the employee or applicant moves forward with an EEO complaint or complaint-related process.

Does this mean that an employer can never take action against someone who has engaged in EEO activity?

No.  If an employer takes action against an employee or applicant who has engaged in EEO activity, the action must be based on the employee’s or applicant’s conduct or performance.

For example, if an employee’s performance slips, or if the employee makes harassing statements to co-workers, employers may respond with appropriate action.

Does the law provide any additional protections to safeguard ADA rights?

Yes. For example, if an employee or applicant asks for a religious accommodation for an FDA-approved vaccine, this type of accommodation request is covered under the ADA. Employers should engage in their agency’s reasonable accommodation process in such circumstances.

An important reminder comes at the end of the question-and-answer segment: “The employer’s actions may still violate the ADA’s interference provision even if an employer does not actually carry out a threat, and even if the employee is not deterred from exercising ADA rights.”

Happy Holidays, and I’ll see you back here in the New Year. Stay safe, and remember, we’re all in this together.  [email protected]

Is Removing Fed for Lack of Vaccination a Potential Due Process Violation?

, ,

By Deborah Hopkins, November 17, 2021

Executive Order 14043 requiring all Federal employees to be fully vaccinated against COVID-19 by November 22, unless the employee qualifies for a legal exemption (disability or religious belief), it’s all but certain your agency is currently dealing with a significant number of exemption requests. And with that deadline fast approaching, agencies will soon be disciplining employees who fail to provide proof of full vaccination by that date.

OPM and the Safer Federal Workforce Task Force recently put out guidance about the progressive discipline process agencies should generally use in instances where employees refuse or fail to be vaccinated as required by EO 14043.

In a recent training class, a student brought up this question:

The guidance says that employees who fail to comply with the vaccine mandate should be counseled, and then suspended, and if they continue to refuse to be vaccinated, they should be removed. Isn’t this a due process issue since the discipline is pre-decided in these cases?

And our FELTG answer:

It’s wise to be thinking of these potential concerns before the disciplinary process begins en masse. Fortunately, if Deciding Officials are sufficiently prepared and understand their limited role in the process, due process violations can easily be avoided.

The steps of due process in agency disciplinary actions under 5 CFR § 752 are:

  1. Notice to the employee of the charge(s), the proposed penalty, and the material the agency relied upon in the proposal;
  2. Employee’s opportunity to respond, with the assistance of a representative if desired; and
  3. An impartial decision, where the decision is made based ONLY on the proposal and the employee’s response.

While the guidance says generally employees should be removed for failing to comply, the Deciding Official has the final say. And even if every DO ultimately decides to remove an employee who does not get vaccinated (and does not qualify for an exemption), as long as the DO can credibly testify that she did not make her decision until after the employee’s reply, then there is no due process violation.

Think of a few of statutory penalties that exist for Federal employees: minimum 30-day suspension for misuse of a GOV; 3-day suspension for a first offense of whistleblower reprisal under 5 USC 7515; removal for Treason. These do not raise a due process issue if the DO considers the employee’s response before making the decision about the proposed discipline. The same principle applies here.

We’ve been busy at FELTG helping agencies prepare for these processes. If there’s anything we can do to help you, please don’t hesitate to let us know. [email protected]

The Good News: Administration’s LR Oxymorons Aren’t as Bad as They Seem

, ,

By Ann Boehm, November 17, 2021

I think oxymorons are kind of fun. An “oxymoron” is “a combination of words that have opposite or very different meanings,” according to the Merriam-Webster Online Dictionary. You know — jumbo shrimp, military intelligence (I have to include that since my husband spent his Federal career in military intelligence), small crowd, pretty ugly, freezer burn.

But are they fun in the Federal labor relations world? The administration’s emerging Federal sector labor relations policy has thus far created two oxymorons. (Full disclosure — I coined these myself based upon Administration directives.)

It started with Executive Order 14003 and this Administration’s directive (like the Clinton and Obama Administrations before it) for heads of agencies to engage in permissive bargaining under 5 U.S.C. § 7106(b)(1). In other words, we now have “mandatory permissive” bargaining. An oxymoron. I’m not going to go into detail about mandatory permissive bargaining in today’s article. We’ve hosted webinars on the topic, and it’s part of our labor relations training classes. Suffice it to say, though, mandatory permissive bargaining has been around before, and it’s not as onerous as agencies fear. (And just for good measure, the Trump Administration directed agencies not to engage in permissive bargaining, so we had “prohibited permissive” bargaining. Who knew Federal labor relations could have so many oxymorons?)

Let’s add a new oxymoron that emerged from two recent OPM directives. As of Oct. 20, 2021, agencies are being strongly encouraged by OPM to engage in what I call “neutral encouragement” of employee bargaining unit rights. An oxymoron.

According to two OPM memoranda to Heads of Executive Departments and Agencies, OPM wants agencies to highlight bargaining unit employee rights in the hiring and on-boarding processes and highlight bargaining unit employee rights to join a union and their rights as bargaining unit members.

What’s the problem with that, you may ask? Well, the Federal Service Labor-Management Relations Statute requires agencies to remain neutral regarding Federal sector unions. According to 5 U.S.C. § 7116(a)(2), it is an unfair labor practice for an agency “to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment.” OPM acknowledges this little conundrum in the Frequently Asked Questions attached to one of the memos.

OPM acknowledges that “Agencies and their managers and supervisors should remain neutral, but this does not mean agencies are prohibited from providing information to employees or removing certain obstacles that might inhibit a union’s ability to exercise its rights under the law.” Hmmmm. Could you call that splitting hairs? Wonder how many lawyers it took to come up with that distinction.

The memo further explains, “OPM is simply encouraging agencies to inform employees of the Government’s policy relating to labor-management relations and representation and informing employees of their rights under the law.”

There you have it. “Neutral encouragement.” The latest oxymoron.

And what is it, then, that OPM is “strongly encouraging” agencies to do?

  • Include in job announcements whether a position is in a bargaining unit or not.
  • Include in job announcements the name/local/chapter of union.

Ann’s take: I do not think these two requirements are a good or bad thing. For me, if I had known one of my past jobs was in a bargaining unit, I might have declined the position (despite 16 years of Federal service, I was lowest on the seniority rung because the Collective Bargaining Agreement provided that service within the agency counted above Federal service). Putting this information in announcements could encourage some people to apply and discourage others.

  • Encourage unions to be part of new employee orientation.

Ann’s take: I do not think is a good thing or a bad thing. Employees are often overwhelmed by the information they receive during orientation. The union presentation will be just one additional piece of information for them to absorb. And let’s face it: If they are in a bargaining unit, they have bargaining unit rights. No reason to hide that from them.

  • Provide new bargaining unit (BU) employees information regarding their labor relations rights.
  • Provide BU employees notice of their labor relations rights on a quarterly or biannual basis.
  • Highlight the BU employees’ rights to join a union and include contact information for the union representative.

Ann’s take: Providing employees notice of their labor relations rights is likely to be a good thing. Employees and even union officials often misunderstand and misinterpret their representation rights. Providing the statutory language to employees initially — and on a regular basis — may actually help agencies deal with BU employees. Whether an employee pays dues and joins the union really has no impact on the agency.

Are these requirements really neutral?

Probably not.

Personally, I take this neutrality stuff seriously. If it weren’t for the neutrality requirement, I may never have worked in the Federal labor-management relations world.

Way back in 1992, I was hired by the Fort Campbell Schools (FCS) because they had a union election overturned (the union lost that election) because the FLRA decided the FCS management did not remain neutral during the election process. In the second election, the union won.

FCS decided they needed a labor attorney to guide the FCS administrators on all things Federal sector labor relations, and that was how I got hired. Throughout my career, I remained acutely aware of the management obligation to remain neutral.

Even though agency “neutral encouragement” of bargaining unit rights is arguably an unfair labor practice under the Federal labor statute, what OPM is asking agencies to do is really not the end of the world. And that’s good news. [email protected]