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]

Go the Extra Yard to Support Feds With Mental Health Conditions

, ,

By Dan Gephart, November 17, 2021

On the day Philadelphia Eagles’ offensive lineman Lane Johnson returned to action after a three-game absence, Atlanta Falcons’ wide receiver Calvin Ridley announced that he was stepping away from football for a while. What’s the big deal? The NFL injury report is a constantly fluid and ever-changing list, especially in the age of COVID.  What made this particular Sunday’s roster moves unique was that Johnson and Ridley cited mental health as the reason for their absences.

Earlier this year, tennis star Naomi Osaka and gymnast Simone Biles took their own leaves of absence from sports to address their mental health.

Elite athletes are not alone. There was a mental health crisis in this country before the pandemic, which has only exacerbated it further. Four in ten adults are reporting symptoms of anxiety and depression – up from one in ten during pre-pandemic times. There has also been a significant increase in substance abuse and suicidal ideation.

The pandemic-related increase in mental health challenges has hit essential workers the hardest. While most Americans immediately think of Uber drivers and Grub Hub deliverers, we all know the critical essential work of Federal employees in health, science, emergency assistance, and their supportive fields.

As a Philly sports fan, I watched the Lane Johnson situation closely. I was pleased with how the Eagles organization handled this very public health issue. (It’s one of the few things the 4-6 team has correctly done this year). It appears that the Atlanta Falcons are providing the same support for Ridley.

There is a mental health crisis in this country. And so having well-known figures discuss their challenges can be a real positive. Unfortunately, misinformation continues to spread.

Someone sent me a clip of a Fox Sports show where former NFL player Marcellus Wiley (no relation to FELTG’s Founding Father and former President) launched a several-minute tirade about mental health and sports. I highly recommend that you do NOT waste your time watching the clip. I think you will learn all that you need to know about his perspective from the tweet he sent out in advance of his show:

“The NFL is not a job for the physically weak or the mentally weak! #darwinism (But, there’s always work at that the post office.)”

In one sentence, the former linebacker found a way to demean mental illness and Federal employees. That’s a quick way to get on my @*#! list.

As we wrote two years ago, it’s not true that:

  • People with mental illness are unstable employees and more prone to violence.
  • People with mental health issues are unable to hold down a job.
  • Personality weakness or character flaws cause mental health problems.

So how do you provide a positive environment for employees with mental health conditions? One, you educate yourself. Personally, I’m a big fan of programs developed by the National Association of Mental Illness (NAMI) – a great organization that has been a savior to many families during difficult times.

For a more specific approach for Federal supervisors and HR/EEO professionals, attend the two-hour virtual training event Managing Employee Mental Health Challenges During and After the COVID-19 Pandemic, presented by Shana Palmieri, LCSW, on December 9, starting at 1 pm ET.

In the meantime, consider the following suggestions by Shana for creating a trusting partnership with employees with mental health challenges.

  • Develop clear expectations and agreed upon solutions to meet the goals and expectations of the job
  • Communicate in a clear and concise manner, especially the policies and procedures that may impact their performance
  • Provide respectful, but direct feedback. Also, ask the employee how they prefer to receive the feedback,
  • Avoid judgments or assumptions.
  • Avoid using language that promotes stigma (crazy, insane, loco, nut job…).

Shana will provide plenty of specific examples of reasonable accommodations and offer useful insight into numerous mental health conditions. [email protected]

The Word ‘Reasonable’ is Half of Reasonable Accommodation

, ,

By Deborah Hopkins, November 17, 2021

Numerous EEOC decisions were recently published, and one case dealing with disability accommodation caught my attention. As most FELTG readers know, after receiving a request for reasonable accommodation, an agency “must make a reasonable effort to determine the appropriate accommodation” for the qualified individual with a disability. 29 C.F.R. Part 1630, app. § 1630.9.

In this case, the complainant worked as a rural mail carrier for the U.S. Postal Service. She had several medical conditions that required her to limit her walking and standing time to 1-2 hours per day, to limit the time she spent lifting to no more than 1-2 hours per day, and to limit the amount of weight she lifted to 10 pounds or less. Medical documentation supported these restrictions.

The agency modified some of her job requirements, but not all. The complainant asserted that the agency did not accommodate her fully because it:

  • Assigned her to run the “Blue Door,” which meant she had to walk to the warehouse to speak with supervisors and carriers concerning customer complaints. The total walking time averaged 4-6 hours per day, which violated her medical restrictions; and
  • Required her to deliver Express Mail, which included walking stairs and hills and carrying items in excess of 10 pounds. That also violated her medical restrictions.

The complainant reported that her assignments were violating her medical restrictions. She said rather than be accommodated, she was warned she would be sent home if she could not do the work as assigned.

She also reported that a supervisor threatened to discipline her after she made the supervisor aware the assigned work was violating her medical restrictions. In EEOC’s decision, they found the agency did not properly accommodate the complainant:

Upon review, we find that the record reflects that Complainant was denied a reasonable accommodation for her disability when Agency management required that she work the Blue Door, which required Complainant to walk in excess of her medical restrictions causing her further injury. Complainant asserted that she notified multiple management officials that she was being made to work in excess of medical conditions.

We note that the record reflects that Complainant informed multiple management officials herein that she was provided with duties in excess of her restrictions, but no action was taken to address Complainant’s concerns. In fact, management engaged in retaliatory actions by threatening to send Complainant home for exercising her right to seek out an accommodation and be allowed to work within her restrictions. Based on a review of the record, we find that Complainant established that she was denied reasonable accommodation for her disability when she was made to work in excess of her medical restrictions and subjected to reprisal for attempting to exercise her rights under the Rehabilitation Act.

Marleen G. v. USPS, EEOC No. 2020003464 (Sept. 7, 2021)

The EEOC ordered the agency to ensure the complainant was provided a reasonable accommodation that allowed her to perform her work within her medical restrictions. Remember, partially accommodating an employee without considering all restrictions, is not reasonable accommodation at all. [email protected]

What are Management Rights?

, ,

By Michael Rhoads, November 16, 2021

If your agency’s union hasn’t already started the process of renegotiating your collective bargaining agreement, then now is the time to consider what your strategy will be when the union does come calling.

When it comes to negotiability, management holds most of the cards. Management typically determines whether a union proposal must be bargained, whether an arbitrator’s award is improper because it abrogates a management right, and whether management-initiated changes must be bargained substantively, or only as to its impact and implementation.

Luckily, management rights are already outlined in 5 USC 7106(a).

(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency—

(1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and

(2) in accordance with applicable laws—

(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;

(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;

(C) with respect to filling positions, to make selections for appointments from—

(I) among properly ranked and certified candidates for promotion; or

(ii) any other appropriate source; and

(D) to take whatever actions may be necessary to carry out the agency mission during emergencies.

One recent example of how the FLRA has decided on management rights is Indep. Union of Pension Emp. for Democracy & Just., 72 FLRA 281 (2021). The Authority ruled in favor of the agency terminating a special achievement awards program, which interfered with management’s right to determine its budget.  However, Chairman DuBester partially dissented because the program does not dictate the amount the Agency must allocate to its overall awards budget.  Rather, it determines the portion of this budgeted amount that will be devoted to a particular type of award.  FLRA Quarterly Digest Report: April 1, 2021 – June 30, 2021 [PDF].

To catch you up on the latest FLRA decisions and the current state of federal LR, mark this date on your calendar: January 13. We’ll be announcing a two-hour LR training program shortly. Keep an eye on FELTG’s website for more details.

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

Performance Plans Work When They Include Effective and Timely Feedback

, ,

By Barbara Haga, November 17, 2021

You have a very clear and understandable and reasonable performance plan in place.  That’s great. What now? Is this something you will pull out at progress review time or at the end of cycle and use to provide a rating – or will you use it to provide feedback to employees as the cycle progresses?

When the current version of 5 USC 43 was designed as part of the Civil Service Reform Act, the idea was that management would identify performance elements and the standards by which those elements would be measured in advance of holding employees accountable to meet them.

At that time, appraisal systems in agencies were often very routinized with employees being rated on things like “quantity” or “quality” with no explanation of what that meant for one position as opposed another.  Congress set out requirements in 5 USC 4302(c) regarding communicating the performance requirements to each individual and providing on going appraisal throughout the cycle.

This system was supposed to make things better. It was (and is) a tool that should have improved the effectiveness of appraisals.  It should have improved performance at both individual and organizational levels – the theory being, “if everyone is singing from the same sheet of music” you should get a better result than if each employee is interpreting requirements their own way. The system established in Chapter 43 wasn’t designed to make onerous work requirements for supervisors or to torture employees. Unfortunately, some of that intent seems to be lost in how agency systems have been implemented. (That’s a topic for another column.)

How Was it Supposed to Work?

5 CFR 430.204(b)(1) lists what appraisal systems should include. One of the items is that employees should be evaluated during the appraisal period on their elements and standards.

The regulations at 5 CFR 430.206(b)(2) require that “Performance plans shall be provided to employees at the beginning of each appraisal period (normally within 30 days).” But then what?  The following section in 5 CFR 430.207(b) sets out the requirements for ongoing appraisal:

An appraisal program shall include methods for appraising each critical and non-critical element during the appraisal period. Performance on each critical and non-critical element shall be appraised against its performance standard(s). Ongoing appraisal methods shall include, but not be limited to, conducting one or more progress reviews during each appraisal period.

Progress reviews are good, but feedback once every six months is probably not going to get the job done.

For this system to operate in an optimal way, employees need to have elements and standards that they understand, and they should be receiving information throughout the cycle (not just at progress review time) so that they have a clear picture of where they stand in comparison to that plan.

I mentioned when I wrote about setting conduct expectations that most people will try to comply if they know what the requirements are. The same idea applies here.  Where managers run into difficulties is when they have plans that they can’t even explain. Perhaps they included measurers they can’t actually track. Or, employees were told everything was great during the cycle, but the end of cycle rating is significantly lower.

Sometimes managers have tried to pull in things that were never in the plan to begin with as justification to explain a rating lower than what the employee believed he/she deserved.

Feedback on Accomplishments

On their webpage on feedback, OPM points out how feedback fits into the overall concept of performance management:

Effective and timely feedback is a critical component of a successful performance management program and should be used in conjunction with setting performance goals. If effective feedback is given to employees on their progress towards their goals, employee performance will improve. People need to know in a timely manner how they’re doing, what’s working, and what’s not.

OPM uses the analogy of playing “Hot or Cold” to describe how some managers handle performance feedback. They hand out performance plans and then the game begins:

“You’re cold! Now you’re getting warmer! You’re HOT!” Even children playing the popular “Hot or Cold” game know that to perform well (find the hidden object) people need to be told how they’re doing. Without feedback, you’re walking blind. At best, you’ll accidentally reach your goal. At worst, you’ll wander aimlessly through the dark, never reaching your destination.

This is so fundamental it seems I shouldn’t have to say it. But playing “hot or cold” with performance unfortunately is real. Think about these types of rating discussions:

Scenario A

Employee:  I appreciate the nice words you included in the narrative for this Level 4 rating, but I’d like to do better on my next rating. What would it take to get a Level 5?

Supervisor: (Uncomfortable wiggling in seat) Well, umm. I can’t say for sure. I would have to see what you do next year, but I’ll know it when I see it.

Scenario B

Employee: You mentioned in the narrative that the reports you’ve listed didn’t have citations to the most recent guidance, but some of these are from four months ago.  Why didn’t you tell me then?

Supervisor:  I was saving up the information so we could have this meeting.

Performance Management IRL

IRL means “In Real Life.” Work is real life for a portion of every employee’s day.  Performance management is about ensuring that employee performance is meeting minimum requirements and hopefully doing much more than that. By having employees meet performance requirements, then the organization should be meeting the mission, hitting the goals, taking care of the needs of the serviced population, and/or giving the customers what they are due. It is not an esoteric exercise. It’s about giving clear guidelines and then letting people know whether they met them or not.

Employees may do better because they figure out on their own how to achieve more, but a manager can get them there more quickly if they address things when they happen. That’s not just big errors, either. It could be just day to day things like, “this paragraph could be clearer if you added this information,” or “the data you included is absolutely accurate, but too much detail for this audience,” or “there is an assumption in your analysis that isn’t explained and needs to be addressed.”

It’s just not honest not to give feedback based on what the person did or didn’t do as measured by the performance plan.

Timeliness: It’s The Attempt That Counts

,

By Deborah Hopkins, October 26, 2021

Equal Employment Opportunity Commission regulations have long required that Federal employees (or applicants) must make a request to initiate precomplaint counseling with an EEO Counselor within 45 days of the effective date of the personnel action, event or matter alleged to be discriminatory. 29 CFR § 1614.105(a)(1). And 29 CFR § 1614.105(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in § 1614.105, unless the Agency extends the time limits in accordance with § 1614.604(c).

In a recent case, the EEOC looked at this very issue when a complainant argued her contact was timely, and the agency argued otherwise. The complainant alleged that her agency subjected her to discrimination on the basis of sex (female) when:

1. She was expelled from the Physical Security Training Program (PSTP) class at FLETC on Jan. 31, 2017; and

2. Her employment as a Law Enforcement Specialist was terminated on Feb. 8, 2017.

At the conclusion of the investigation, the agency provided the complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). She timely requested a hearing, and the agency filed a Motion to Dismiss the complaint for untimely EEO Counselor contact. The complainant timely filed an Opposition to the Agency’s Motion to Dismiss.

The complainant argued that she timely initiated EEO counselor contact when she contacted the DHS Office of Civil Rights and Civil Liberties, Equal Employment Opportunity and Diversity Division on March 21, 2017, after obtaining the phone number from the Agency’s website. She also asserted she made additional calls and left voicemails on March 23, 24, and 27, 2017 and on an unspecified date, she was contacted by the Agency’s EEO office and directed to contact the Federal Protective Service Complaints Manager. She did so on April 5, 2017, and was directed to the FLETC EEO office.

The AJ found that the alleged discriminatory acts took place on Jan. 31, 2017, the date of the complainant’s expulsion from FLETC; and Feb. 8, 2017, the date of the complainant’s removal. Therefore, the complainant had until March 25, 2017 to contact an EEO counselor. Noting that March 25, 2017, fell on a Saturday, the AJ observed that even if the time limit was extended to the next business day (Monday, March 27, 2017), the complainant’s April 5, 2017 contact with an EEO counselor was still untimely.

The AJ reasoned that the complainant was informed of the 45-day time limit in her Welcome Packet, handbook, and termination letter, and that her argument that her contact with another office was timely, was misplaced. The AJ reasoned that where a complainant is provided clear procedural instructions regarding how and when to contact the Agency’s EEO office, a failure to follow such instructions renders attempted contact insufficient.

On March 4, 2021, the Agency issued its Final Action fully implementing the AJ’s decision, procedurally dismissing the complaint pursuant to 29 C.F.R § 1614.110(a). The complainant appealed to the Commission.

After reviewing the arguments from both sides, the Commission found the complainant initiated contact on March 21, 2017, when she called the DHS Office of Civil Rights and Civil Liberties. Both the EEO Counselor’s Report and the “Headquarters/FPS EEO Intake Form” identified March 21, 2017 as the date of initial contact.

The Commission explained:

As for the agency’s contention on appeal that this contact was insufficient and Complainant was required to contact the FLECTC EEO office, we disagree. We have consistently held that “a complainant may satisfy the criterion of Counselor contact by initiating [contact with] an agency official logically connected with the EEO process, even if that official is not an EEO Counselor.” Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). Here, by contacting the Agency’s Office of Civil Rights and Civil Liberties, instead of a local, particular EEO office, we find that Complainant met her obligation in initiating the EEO process. Therefore, we find that Complainant’s contact regarding her February 8, 2017 termination … was timely.

Ellan C. v. Mayorkas, EEOC No. 2020003085 (Aug.19, 2021).

The EEOC remanded the case back to the agency, and ordered the agency to send the file to the hearings unit. Whether there was discrimination on the merits, we don’t yet know, but we now have another case that tells us EEOC will consider contact timely if the contact is logically related to the EEO complaint or process. For more on this and other EEO mistakes to avoid, join FELTG November 16 for the 60-minute webinar So You Think You Can Dismiss That EEO Claim. [email protected]

The Federal EEO Process is Broken: Can We Help Fix It?

, ,

By Ann Boehm, October 20, 2021

I started working on Federal EEO cases in 1993. From the first case I handled, I thought the process was very odd and inefficient. You probably are aware of the process, but in case you aren’t, here it is:

Informal complaint with counseling. Formal complaint. Investigation. Report of investigation. Request for a hearing with an Equal Employment Opportunity Commission (EEOC) Administrative Judge. Discovery. Summary judgment motion. Perhaps a hearing. A Decision.

But wait. There’s more.

A Final Agency Decision. Perhaps an appeal to the Office of Federal Operations. And even Reconsideration of that decision. What the EEOC says is final. No appeal to a court as an option (which is not the case for Federal Labor Relations Authority and Merit Systems Protection Board cases – those can be appealed to U.S. Courts of Appeals).

Who thought this up?

And throughout the process, the complainant can amend and add to the complaint. Plus, they will forevermore claim retaliation for anything that happens in the workplace after they file the first complaint. This can’t be the best way to handle discrimination claims. But it’s been the same for years and years.

A recent article in Government Executive gave me hope. Rep. Carolyn Maloney (D-NY) asked the Government Accountability Office to look at reforming the Federal EEO process. Finally, there’s hope. Or is there?

According to the article, Maloney thinks the process is tilted against the complaining employees. She is correct that the process is “convoluted, slow, costly,” but I’m not sure she’s correct about “unjust.”

She’s correct that discrimination is still very prevalent in the United States. She is not correct, however, in asserting that the process is pro-agency — at least not in my experience. I’d characterize it as onerous for agencies and complainants.

I teach a lot of EEO courses for FELTG. I hear from many attendees that complainants are filing multiple complaints – sometimes as many as 20 to 30. There’s supposed to be a point where that number of complaints is frivolous, but the EEOC almost never makes such findings.

There’s other abuse of the system. One attendee recently told me a complainant blatantly revealed she was filing a complaint to ensure she could claim retaliation for anything the agency might do to her in the future. According to the EEOC’s 2019 Annual Report, employees claimed retaliation in 7,176 cases. There’s either a lot of retaliation going on, or it’s just easy to claim.

The concept of hostile work environment seems to be fundamentally misunderstood. I hear repeatedly that employers who assign work to their employees are getting claims of hostile work environment filed against them. Being told to do your job is not a hostile work environment. Doing your job is, well, your obligation. Employees are filing these claims for sure. The EEOC’s 2019 report indicates that employees claimed a hostile work environment in 7,470 cases (7,044 non-sexual; 498 sexual).

My friends, these comments from practitioners all over the government and these statistics suggest to me that the process remains broken. There are way too many frivolous complaints tying up the process. The legitimate discrimination complaints are lost in a system that allows the frivolous complaints to overwhelm that system.

Here are some more fascinating statistics from the EEOC’s 2019 Annual Report that I think indicate some problems with the system.

Employees filed 36,348 informal complaints. Out of those, 14,138 filed formal complaints. Agencies spent $46,475,845 investigating those complaints. That’s an average of $5,087 per complaint.

In 2019, 4,054 of those complaints were resolved by an Administrative Judge’s decision. Are you ready for this? Out of 4,054 complaints decided by an Administrative Judge, a finding of discrimination occurred in 100 cases – 2.47 percent. That means 97.53 percent of cases resulted in a finding of no discrimination. Why are there so many cases filed and so few findings of discrimination?

Is it just too easy to pursue an EEO complaint?

According to Maloney, these statistics suggest that the EEO process is not serving those who are victims of discrimination. To me, however, these statistics suggest that something is very wrong with the process.

In the private sector, employees must file a discrimination charge with the EEOC, and the EEOC investigates. If the EEOC determines there is likely discrimination, the EEOC or Department of Justice files a lawsuit against the employer. If the EEOC is not able to determine that there is discrimination, the employee receives a Notice of Right to Sue. The employee then can proceed in court against their employer.

If the EEOC tells you it does not think there’s evidence of discrimination, that’s a significant indication that you are not a victim of discrimination. In the Federal system, the EEOC does not get involved until there’s an Administrative Judge’s decision. This comes long after other time-consuming processes – the investigation, the report of investigation, and discovery. AJ decision statistics indicate there are not many cases of illegal discrimination in the Federal sector.

The private sector system forces employees to pursue cases against their employers in court. Going to court costs money. An attorney is likely involved. There’s probably a court filing fee. An employee who wants to proceed against her employer in court has some real cost-benefit assessments to make. If she has a legitimate discrimination complaint, she has an incentive to go through the process. If she is trying to abuse the system, it’s a bigger financial risk in the private sector than in the Federal sector.

Am I cynical? Yes. But I really feel like the current system does not serve the victims of discrimination. We know it takes an enormous amount of time and energy on the part of agency counsel, EEO specialists, EEO counselors, responding management officials, and yes, the complainants too.

So FELTG nation, how can we help? If GAO goes forward with the requested review of the process, what would you tell them? There’s got to be a better way to process Federal EEO cases.

I hope GAO does a thorough review. I hope they talk to EEO counselors, EEO investigators, and agency EEO counsel. I hope people are honest. And I hope that the process can finally be improved. There I go again. Eternal optimist.

If you have any thoughts, send me an email. [email protected]

How is the Federal Personnel Manual Related to Vaccine Refusals? … Or 10 Suggestions for Implementing the Vaccination Executive Order, Part II

, ,

By William Wiley, October 20, 2021 

[Editor’s note: This is the second of a two-part article. You can find the first part here. In the way only he can do, Bill Wiley reminisced about the old Federal Personnel Manual and offered the first five steps of a Checklist to help you implement the COVID-19 vaccination EO. We pick up where Bill left off last week.]

  1. Assuming continued non-compliance, on November 15, the Vaccine Mandate Coordinator proposes a one-day suspension. Those of you in the FELTG Nation are aware that MSPB case law tells us that progressive discipline is not necessary prior to a removal. In addition, there’s good argument a Reprimand in Lieu of Suspension is a better alternative to disciplining continued misconduct. However, given the high visibility that these cases will receive, and the general lack of public understanding of how discipline in the Federal civil service really works, a traditional suspension at this stage is a small step to take to avoid having to argue whether it is necessary (OPM even calls progressive discipline for vaccine refusal the “preferred approach”). You might need to craft exceptions to your existing agency disciplinary/grievance policies to make this work, but that should not be too difficult.

OPM’s guidance recognizes that there is a regulatory difference between separating a career Federal employee by “removal” and a probationary employee by “termination”. Traditionally, agencies don’t engage in progressive discipline with probationers in large part because there is not much of a standard for terminating a probationer other than the generalized non-specific conclusion that the employee is not a good fit in that particular government position. That’s why we don’t have to provide due process or appeal rights in most terminations of probationary employees.

However, though progressive discipline is almost never used with probationary employees, you might want to consider engaging in it when implementing the vaccination EO. OPM doesn’t rule it out and seems to go out of its way to emphasize the importance of it in this situation. Refusing to be vaccinated arguably is a different sort of misconduct from that which usually is the basis for a probationary termination. Maybe the jolt of a suspension will bring the employee in line with the President’s mandate.

Frankly, here at FELTG, we wish OPM had taken a clear stand on this aspect of enforcement. Since it has not, and since the arguments are good on both sides, the decision as to whether to suspend a probationary employee who refuses to comply with the mandate comes down to an individual call as to your patience and your resources.

  1. The government-wide minimum notice period for a proposed suspension of 14 days or fewer is 24 hours. If your agency policy or collective bargaining agreement provides for a longer response period, you will either need to create an exception to your policy or modify the following as appropriate. Otherwise, the suspension proposal notice can be straightforward:

Previously, you have been informed of the requirement that you provide documentation that you have been vaccinated against COVID-19. Upon your failure to comply with this requirement, you were counseled and thereby given an additional five days to provide the necessary documents. As of this date, you have failed to do so. Therefore, this office is proposing that you be suspended for one day in the hope that a suspension without pay will impress upon you the importance of complying with the government-wide vaccine mandate. You may defend your inaction by responding to this proposal by the close of business tomorrow. Any response should be addressed to this office.

  1. Assuming an inadequate (or no) response, on November 17, the VMC issues a decision:

Previously, this office proposed that you be suspended for one day for failure to document that you have been vaccinated for COVID-19. As you have failed to respond to the proposal in a manner that would cause a different outcome, it is the decision of the Vaccine Mandate Coordinator that you be suspended without pay for one day effective tomorrow. If within five days subsequent to the suspension (by November 22) you provide documentation that you have been vaccinated as required, no further action will be taken. However, if you continue to fail to provide the mandated documentation, this office will propose that you be removed from Federal employment. If you so choose, you may challenge the validity of this suspension decision by filing a grievance with this office as soon as possible.

  1. November 23: You got bupkis. Either the employee does not understand the gravity of the misconduct, or the employee is daring you to do something about it. Oh, sure; perhaps the employee has deeply held beliefs that the vaccine will cause the development of a third eye, or the whole “pandemic” is a government hoax. Maybe the employee has done independent research and decided to accept the opinion of someone on the Internet with “secret information” he obtained from the friend of a cousin (who has twice been probed by aliens) instead of the findings of every single reputable scientific body in the known universe. If so, personally my heart breaks. Still, as an agency, you have little choice at this point. You have to initiate the removal of the employee from government service. Here’s your proposal notice:

Previously, this office counseled you, then suspended you, for your failure to comply with the order that you provide documentation that established that you have been vaccinated against COVID-19. Therefore, it is with regret that by this notice your removal from service is proposed. In selecting the penalty of removal, in addition to your previous disciplinary record, I have considered the following factor:

The nature and seriousness of the offense and your willful repeated failure to comply with clear notice of the vaccine mandate.

Within the past 45 days, the agency provided you notice of the government-wide mandate for you to obtain full vaccination against the COVID-19 virus, and to provide documented proof of your compliance (attach 1). Should you have been confused about the necessity to comply with the mandate, this office previously counseled you and then suspended you to give you the opportunity to comply with the documentation requirement, or to otherwise defend your inactions (attachments 2 and 3). Yet to this day, you have failed to provide the necessary documentation.

As for the seriousness of the offense, you have failed to comply with a government-wide Presidential order regarding a matter of life-or-death, relative to yourself and to those with whom you come in contact as a Federal employee. The Executive Order highlights the importance of a Federal employee being vaccinated:

“The health and safety of the Federal workforce, and the health and safety of members of the public with whom they interact, are foundational to the efficiency of the civil service.  I have determined that ensuring the health and safety of the Federal workforce and the efficiency of the civil service requires immediate action to protect the Federal workforce and individuals interacting with the Federal workforce.  It is essential that Federal employees take all available steps to protect themselves and avoid spreading COVID-19 to their co-workers and members of the public.  The CDC has found that the best way to do so is to be vaccinated.

The Safer Federal Workforce Task Force (Task Force), established by Executive Order 13991 of January 20, 2021 (Protecting the Federal Workforce and Requiring Mask-Wearing), has issued important guidance to protect the Federal workforce and individuals interacting with the Federal workforce.  Agencies have also taken important actions, including in some cases requiring COVID-19 vaccination for members of their workforce. 

Accordingly, building on these actions, and in light of the public health guidance regarding the most effective and necessary defenses against COVID-19, I have determined that to promote the health and safety of the Federal workforce and the efficiency of the civil service, it is necessary to require COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.”

Should you provide the required documentation by the end of the notice period, this proposed removal action will be cancelled and no record of it will be retained in your official personnel folder. Should you provide proof that you have begun the process of becoming fully vaccinated using a two-dose series, but have not yet completed the vaccination cycle, the decision on the proposal will be delayed to allow you an opportunity to complete the requirements of your particular vaccine protocol

[Your agency’s standard rights-notification would go here.]

  1. December 23, at the expiration of the statutory 30-day notice period for proposed removals, assuming continued non-compliance, you issue the decision:

Thirty days ago, this office proposed that you be removed due to your failure to provide documentation that you have been fully vaccinated against COVID-19. Finding your continued non-compliance and no mitigating factors warranting a different outcome, it is the decision of the agency that you be removed from Federal employment, effective tomorrow.

[Your agency’s standard rights-notification would go here.]

That’s it. Nothing fancy, just classic civil service accountability procedures. They work most every time if you know what you’re doing. And if you’ve been to any FELTG training on this topic in the past 20 years, you already know this stuff. To save us all a little time, let me take a guess at a few questions you might have.

Question: FELTG has taught for many years that in a proposed removal, the deciding official should issue a decision soon after the employee’s response, usually within just a couple of days. Why are you recommending here to delay the decision to the end of the 30-day notice period? For unexplained reasons, OPM’s implementation guidance requires that the employee be retained at the worksite during the proposed removal period: “Employees should not be placed on administrative leave while pursuing an adverse action for refusal to be vaccinated.” Obviously, this is dangerous to coworkers and clients of the agency, even when safety protocols are in place for non-vaccinated workers. Since you will have to keep employees in the workplace during the notice period, it would be unnecessarily dangerous during that period to inform them that the decision has been made to fire them, then continue to allow them to access the workplace. We NEVER want a disgruntled employee to have access to a government worksite any more than necessary (just read the horrific news articles to appreciate what can happen when “disgruntled employees” get angry at their coworkers). Therefore, keep the employee around, but in the dark as to the outcome, until you can immediately implement the removal.

Question: There are 12 Douglas Factors. The proposed removal notice mentions only two or three (Nos. 1, 3, and 9). Why does it not discuss the others?  The Board has held that an agency does not need to assess all Douglas Factors, only those relevant to the specific case. As the EO requires removal for failing to get vaccinated, and the employee by this point has failed to get vaccinated, there’s really no lesser sanction available once the misconduct is established. As for consideration of a second, more severe, suspension in lieu of removal, there’s no case law nor science that establishes that a second longer suspension is more likely to correct behavior than was the previous suspension. Remember, we’re trying to correct behavior – to get the employee vaccinated – not trying simply to punish the employee for misbehavior. Plus, time is of the essence.

Question: What about our labor relations obligations to the unions? Absolutely you need to satisfy the statutory and contractual requirements relative to implementing a new agency policy. Exactly what will be involved in meeting those obligations is beyond the scope of this little article. However, it’s worth noting the language of the official guidance on implementing the vaccine mandate policy: “[B]argaining over this Government-wide policy will be limited to impact and implementation issues not otherwise addressed in the guidance. Moreover, agencies must implement Government-wide policy by the deadline, so any bargaining that has not been completed by the time implementation must begin will have to be finished post-implementation.”

Question: What about a request to be excused from the vaccine mandate to accommodate a disability?  Another topic for a great long article, but not in this space. There are so many variables to deal with, it’s hard to develop a common strategy other than the usual approach:

  • Require that the employee provide evidence of the specific medical condition that prohibits vaccination. Once it’s provided,
  • Have agency personnel review the employee’s medical evidence to see if an inability to be vaccinated is warranted by the proffered evidence. If it is,
  • Evaluate the employee’s duties and workplace to see if they can be modified so that the employee can perform safely without being vaccinated (be sure to consider steps that might allow the unvaccinated to work such as providing employee isolation, masks, and periodic testing). If not,
  • Search the agency for vacant positions at the same grade and lower to which the employee can be accommodated and offered reassignment. If there are none,
  • Fire the employee for Medical Inability to Perform.

Question: What about a request to be excused from the vaccine mandate to accommodate a religious belief? Unless I had smoking gun evidence that the employee’s claim was a ruse to get out of being vaccinated (e.g., an email with sad little green emojis ? coupled with an admission that the employee doesn’t really have valid religious beliefs), this Old Practitioner would yield to the claim and start looking at accommodations. If you would prefer to fight out before EEOC whether the employee’s religious beliefs are a “sincere and meaningful belief that occupies a place in the life of its possessor parallel to that filled by God,” “part of a comprehensive religious belief system” and not simply an “isolated teaching,” then bless you. We can always use the case law.  Hope this helps. Best of luck out there. [email protected]