Top 10 Tips From the Other Side

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By Meghan Droste, August 18, 2021

The time has come, FELTG readers, for my final Tips from the Other Side.  It has been a pleasure providing you with insights on what to do, and what not to do, and how to do the best job possible when handling a variety of EEO-related issues. I hope you have enjoyed the journey and picked up some valuable lessons along the way.

Before I go, here is a top ten list of sorts. These are in no particular order and the list is not meant to be exhaustive, but I hope you can use this collection of final tips as a roadmap to avoid common pitfalls.

10 – Understand timeliness issues: The EEOC is pretty clear on how long complainants have to contact an EEO counselor, file a formal complaint, request a hearing, etc. While these issues can be confusing for complainants who are unfamiliar with the process, they shouldn’t be for agencies. Remember that harassment complaints include a series of events, so employees have 45 days from any of the events — not necessarily the first one — to contact a counselor. Failure to accommodate claims can also be timely after more than 45 days. Each time an employee needs an accommodation and the agency doesn’t provide it can be a new violation, it restarts the 45-day clock.

9 – Reasonable accommodations must be effective: Speaking of accommodations, remember that agencies are required to provide effective accommodations to qualified individuals. That means that an agency’s obligations don’t end just with providing the accommodation. You need to follow up and make sure that it’s actually effective before you can consider your work done.

8 – Don’t cut corners or jump to conclusions: Far too often, agencies seem eager to dismiss complaints before they should. Don’t dismiss a complaint just because the complainant worked for a contractor; you need to gather enough information to actually do a joint employer analysis and determine whether the agency was an employer. Also, don’t look to the merits of a complaint in order to dismiss it; all you should be doing is determining whether or not the facts could state a claim for relief. Even if you don’t think the complainant will prevail, you still have to accept the complaint if it’s possible they could.  You might be trying to save time or agency resources by getting rid of complaints early, but you will likely create more work for the agency in defending the dismissal and then still have to investigate the complaint in the end.

7- Know what to do with medical information: Agencies may only request medical information from employees in very specific circumstances (when it’s job related and consistent with business necessity). Be sure you don’t ask for it when you’re not entitled to it, and if you do collect, make sure you know what to do with it. Don’t share it with anyone who doesn’t need to know it, and don’t commingle medical documentation with other, non-medical, information.

6 – Retain your documents: More on documents. Make sure you don’t destroy things before you’re allowed to. The Commission’s regulations require agencies to retain documents regarding personnel actions, such as selection and removal decisions, for one year following the action. This retention requirement is extended if there is litigation. If someone involved files an EEO complaint, you will need to keep all of the documents until the end of the litigation. If you destroy them before you should, the agency could face sanctions or find itself in a situation where it cannot adequately explain its actions.

5 – Make sure your investigators create an appropriate record: Agencies are responsible for the quality of the ROIs their investigators produce, even if those investigators are contractors. Be sure to review the ROIs before finalizing them—did the investigator interview all of the relevant witnesses and collect all of the relevant documents? If not, send it back for the investigator to do so. If you don’t, you might find your agency on the end of an unfavorable decision by the Commission.

4 – Meet your deadlines: Another way to end up on the wrong side of the Commission is to miss your deadlines. Agencies have 180 days to complete their investigations and issue ROIs. This is not a suggestion. You also need to be mindful of appeal deadlines, as missing those could result in the Commission rejecting your arguments on appeal without considering them at all.

3 – Take allegations of harassment and discrimination seriously: Agencies need to act promptly when they learn of discrimination or harassment. Don’t delay in separating the individuals, starting an investigation, or issuing discipline if appropriate. Failure to act promptly can result in a finding of liability, but it may also undermine the confidence your employees have in the agency.  Also, don’t forget to make the victim of harassment whole—even if you do everything else right, if you fail to address the harm they suffered, you can still be on the hook.

2 – Follow the Commission’s orders: Orders from the Commission, whether they come from an individual judge or from OFO, aren’t suggestions. Ignoring them can land your agency in (even more) hot water.

1 – Make sure your employees, supervisors, EEO staff (everyone!) is well trained: I promise I’m not saying this because I have been helping to provide that training to agencies for four years. It’s my top tip because I truly believe that if people receive the training they need, they will avoid so many of the common mistakes that end up before the Commission. I’ve been saying for years that in a perfect world I would train my way out of a job, because no one would ever violate the law again.  That hasn’t quite happened, but I hope the past few years have at least made some progress towards that.

As I say at the end of all my classes, good luck out there! [email protected]

And Now a Word With … Marcus Hill, on Resolving Conflicts Before They Lead to Litigation

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By Michael Rhoads, August 18, 2021

‘She hit me!’ ‘Don’t touch me!’ ‘I’m not touching youuu…’ ‘You’re so annoying!’

My children are now out of diapers and forming their own opinions and developing their own interests.  Among the three of them, they are a fun-loving, carefree bunch.  But no matter how much they love each other, the occasional argument over the new toy, or simply vying for mom and dad’s attention can get heated from time to time. My wife or I will step in to resolve these little spats, and then we move on with our day.

Conflict is unavoidable at any age. Even after we’ve grown up and start our careers, there will always be someone you work with who may pose a greater challenge than others. I recently spoke to Marcus Hill (pictured above), FELTG instructor and Principal of Hill Management Consultancy (HMC) LLC, about his experiences related to conflict management over his 37-year career in the Federal civil service.

MR: What is the most common type of conflict in the workplace?

MH:  In my experience, the most common type of conflict in the workplace relates to assignment or task interdependences in which employees must coordinate, interface or team to accomplish them. Think about it. If you are a part of a work unit in which your job responsibilities typically require you to perform independently, no problem. However, if what you do requires you to interface, coordinate, rely upon or team with others, that just might be a problem.

MR: How can you promote a more harmonious environment for all?

MH:  I will respond to this question from the standpoint of any employee within a working environment, whether non-supervisory or supervisory. I believe it is imperative to possess and demonstrate the ability to effectively lead oneself first, in the workplace. Let’s unpack that a little.  It starts with understanding yourself and how you relate to others. Being knowledgeable of and practicing emotional intelligence.  Also having an awareness of your personality type and sense for others in the workplace can also be beneficial to harmonizing employee engagements. By demonstrating behaviors you desire others to emulate, you have an opportunity to influence co-workers’ actions from wherever you are in the organization. Simply put, “walk the talk.” Typically, high-performing, harmonious organizations are saturated with employees that have invested in the organization’s vision, actively engaged in achieving its mission and aligned behaviorally with the business unit’s core values.

MR: Is there a one-size-fits-all approach to conflict management?

MH:  Based on the various natures and intricacies related to conflict, I don’t believe there is a one-size-fits-all approach managing them.  However, there are proven strategies, methodologies and processes that can be used to effectively address conflict.  I will be addressing some of these in my upcoming training delivery, Resolving Conflicts Before They Lead to Litigation!

MR: What is the best tool in your toolbox for managing conflict between employees?

MH:  Active listening is the most effective tool for managing conflict between employees. To quote Dr. Stephen Covey: “Seek to understand before being understood.” By exercising active listening during conflict, the parties have the best opportunity to identify and address the specific, not perceived, issue(s) at dispute. Many times, the parties are focused more on defensive posturing to justify their actions in response to what they perceive the problem to be, reacting on filtered information. The goal is to be cognizant of the symptoms stemming from the conflict but focus on identifying and addressing the root cause creating it.

MR: What role does management play in resolving disputes between co-workers?

MH:  Management plays a primary role in resolving disputes between co-workers. By creating a working environment that establishes an organizational culture, reflective of values, that promote harmony, managers can set the tone for healthy debate instead of unproductive disputes.

Be more effective in resolving conflict at your agency!   Join Marcus on Wednesday, September 30 from 11:15-12:30 PM ET for Resolving Conflicts Before They Lead to Litigation. Click here to view our other courses during Federal Workplace Week 2021: Accountability, Challenges and Trends.

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

Establishing Conduct Expectations: A Sample Policy

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By Barbara Haga, August 18, 2021

After the last column was published, I heard from a practitioner from one of those agencies that didn’t have a lot of written guidance on conduct issues.  She was asking if I had a sample of such a set of expectations. I didn’t have a sample, but I have seen bits and pieces in various agency documents that I thought would be helpful. So, I decided to take a stab at putting a policy together.

I have started with work schedules, attendance, and related matters. Next month, I will work on other discipline-related topics. If you have some suggested topics or language you’ve developed, please feel free to e-mail me.

WORK AND CONDUCT EXPECTATIONS

This memorandum sets forth expectations regarding work behaviors and general procedures employees are expected to follow in our workplace. Establishing clear expectations is intended to ensure that employees are aware of basic requirements regarding attendance and work practices and also to ensure that consistent practices are followed throughout the organization.  Meeting these expectations will facilitate effective, timely, and accurate work outcomes which are the key to meeting our mission.

ATTENDANCE AND REPORTING. Employees are to be dependable and prepared to fulfill work requirements during scheduled duty hours, whether working on government premises or at an alternate worksite.

WORK SCHEDULES. Work schedules are set based on the needs of the organization. That doesn’t mean that employee preferences are not taken into account, but ultimately such decisions rest on the when the customers need our services, when organizations we typically deal with are open, and other factors that impact when our work needs to be performed.

The work schedules that are authorized include (fill in options here). Details on use of these schedules can be found here (insert link).

In the event that an employee wishes to request a change in work schedule, requests must be submitted to the supervisor in writing (in advance, or a set time frame in advance.)  Supervisors will respond to requests for schedule changes as soon as possible.

WORK LOCATION. Telework is authorized in the same manner as schedules are set.  The ability to work remotely depends on when and where our services are needed, what types of interactions must take place and how these can be effectively accomplished, the need for sharing information and coordination among work team members, and other similar factors.  We will consider employee preferences, but the demands of the work are always key in such determinations.

Telework is authorized (fill in options). Details on our telework policy are located here (insert link).

LUNCH PERIOD.  Daily work schedules include a ______ minute lunch period. The lunch period is a non-work period. Shifts without lunch periods are generally not authorized, meaning employees may not skip lunch and end their shifts earlier.

BREAKS. Formal breaks are not authorized. Employees are free to take reasonable short breaks to get a beverage or to take a restroom break.  Smoking breaks are authorized……  (Fill in if you have such a policy).

LEAVE SCHEDULING. Employees request leave from their immediate supervisors. Leave requests may be submitted by e-mail, in the timekeeping system, or by telephone (adjust this to fit your requirements). If requesting leave by telephone, the employee should speak to the supervisor directly. If the supervisor is not available, the employee should leave a message with a telephone number where he or she can be reached to be advised whether the leave has been approved. Procedures and time frames for various types of leave requests are outlined in the following paragraphs.  Failure to comply with the procedures may result in the leave not being approved.

Annual Leave.  Employee requests for annual leave are to be submitted in advance.  (Union contracts and leave policies may provide specifics regarding dates by which leave periods must be scheduled.)  Approval of annual leave is dependent on mission requirements.   In the rare event that previously approved leave must cancelled, employees are expected to cooperate in rescheduling.

Sick Leave. Employees are entitled to utilize sick leave for the six authorized uses contained in 5 CFR 630.401. (A reference to a directive or language in a union contract that lists the uses would be more informative). Employee requests for sick leave for anticipated absences such as planned surgery or scheduled treatment should be submitted in advance.  (Your policy may ask for a week or ten days’ notice, for example.) Certain sick leave uses and sick leave over three consecutive days may require written documentation. Details on sick leave usage requirements are found here. (insert link)

Emergency Annual and Sick Leave. The need for leave for annual leave emergencies, such as a car breaking down on the way to work or a plumbing emergency in the home, is to be reported to the supervisor within ____ hours of the beginning of the work shift. The same time frame applies for short notice sick leave requests for unexpected illnesses or medical appointments. As noted above, documentation may be required before leave can be finally approved. Supervisors will advise employees whether the emergency leave is approved as soon as possible.

Other Leave Types.  There are a variety of types of leave for special circumstances such as court leave, leave without pay, Family and Medical Leave, etc. Information on these types of leave can be found at (insert link).

TIMEKEEPING SYSTEM. Employees must maintain accurate information about their work status in the timekeeping system. While timecards are approved biweekly, the best practice is to ensure that the information is input each day. This minimizes problems with omitting leave use or a late arrival from earlier in the pay period and also helps supervisors fill in information if an employee is unexpectedly out and not able to complete the timecard by the deadline.

It is the employee’s responsibility to ensure that leave is accurately input, including any special coding necessary for certain kinds of leave. For example, if you are using Family Care Sick Leave you must identify in the dropdown menu which category of leave you are using (customize this to the specifics of your leave system). If an employee is unsure about how to properly code an absence, it is his or her responsibility to do the necessary research or reach out to the appropriate timekeeping personnel to verify how to properly complete the entry.

MAINTAINING UP-TO-DATE CONTACT INFORMATION. Employees must provide contact information including addresses and telephone numbers and personal e-mail addresses to ensure that, should it be necessary to reach employees outside of work hours, this may be accomplished.

Providing contact information also extends to an employee’s location while on leave for potential recall should that become necessary in the event of an emergency.

 

And Now a Word With … FedUpward Podcaster Love Rutledge

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By Dan Gephart, August 3, 2021

It’s unanimous here at FELTG. The headquarters team and our instructors are beyond tired of hearing the hackneyed tropes about bad Federal employees running amok. That’s why we teach courses like our flagship UnCivil Servant: Holding Employees Accountable for Performance and Conduct, so that you can take direct action against the few misbehaving and poor-performing Feds who ruin the reputations of everyone else.

Federal employee Love Rutledge is also fed up with the “caricature.”

“We’re either lazy, dumb, and couldn’t find better jobs elsewhere; or we’re scheming deep-staters who plot to take down certain segments of the population,” she said. “Obviously, we’re neither. Most Federal employees work hard, serve the public and do the best they can every day.”

Love was so incensed with this mischaracterization she had to do something about it. She launched FedUpward, a podcast where Federal civil servants can find “inspiration, motivation and practical tips.” She dropped her first podcast in October 2019 and just surpassed the 100-episode mark last month. Recent podcast episodes have included interviews with FELTG President Deborah Hopkins (Performance Management and the Santos vs. NASA Ruling) and FELTG instructors Katherine Atkinson (Can My Manager Ask Me THAT When I Return to the Office), Marcus Hill (Network with Senior Executives and Work on Government’s Big Challenges) and Shana Palmieri (How Feds Can Maintain Mental Health and Help Others).

Finding free time isn’t easy for Love. She’s also a full-time Federal employee and the mother of two young children. But she took some time answer a few FELTG questions.

DG: What’s the best piece of advice for Feds you’ve learned over your 100-plus episodes?

LR: There’s rarely a challenge a Federal employee faces that hasn’t been faced by others. The more we collaborate across agency and department lines, the more efficient we can be.

DG: What is something you learned via your podcast that really surprised, saddened, or angered you?

LR: I’ve had several Feds reach out to me who’ve experienced truly toxic managers, retaliation for reporting bad behavior, and full-on discrimination. Those are the more frustrating messages I get. We cannot attract and retain talented public servants while treating folks badly.

DG: How was your work life changed by the pandemic?

LR: As a parent to two young children, the pandemic has been absolutely brutal. My husband and I are fortunate to have resources that gave us options, but few good options existed for childcare over the last year plus. Mama is TIRED. I think many Fed parents can relate to the sense of exhaustion and lack of control that we’ve faced during the COVID crisis. And we’re still facing it. For those of us with children under 12, our options for activities and childcare remain quite limited. I doubt you can find any parents who say they had a good work/life balance over the last 16 or so months.

DG: What should agencies do to improve the overall morale of their workforce? 

LR: Everyone wants to feel appreciated for what they do. Truly listening to employees to understand their concerns, supporting their growth, and providing flexibility where possibleall go a long way toward employee engagement and satisfaction.

DG: Say someone is reading about your podcast here for the first time. Why should that person listen to your podcast?

LR: People listen to my show to get first-person perspectives on current issues, to connect with Feds going through the same issues they face, and to learn about resources they might not otherwise discover. I hope your readers not only listen to the podcast at FedUpward.com or wherever they get their podcasts, but also reach out to tell me what they want to know.

In her very first episode, Love explained the reasons for launching the podcast. Besides looking for more good news about Feds, she wanted more information for younger and middle-aged Feds, and she’d like to see agencies do more to attract younger people.

“In most of the trade publications, you still see their advertisers are hearing aid companies and bath remodelers who support customers’ loss of mobility,” she said. “I’d love to see that shift and have professional organizations for federal employees support people of all ages — and not just Young Government Leaders, who provides those opportunities now.” [email protected]

OPM Reentry Guidance Signals Further Acceptance, Expectation of Telework

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By Dan Gephart, July 26, 2021

The telework paradigm shifted greatly during the pandemic and nowhere is that clearer than in the 38-page guidance [PDF] the Office of Personnel Management released late last week.

While titled “Additional Guidance on Post-Reentry Personnel Policies and Work Environment,” the memorandum written by OPM Director Kiran A. Ahuja, and the majority of “Frequently Asked Questions” section focus on telework and remote work.

Ahuja wrote: “[A]gencies can, where appropriate, deploy personnel policies such as telework and remote work effectively and efficiently as strategic management tools for attracting, retaining, and engaging talent to advance agency missions, including in the context of changes in workplaces nationwide as a result of the pandemic and in response to long-term workforce trends.”

The guidance suggests that agencies “take this opportunity to adjust their telework policies to reflect a new understanding about how telework has worked at their agencies.” OPM provides the following roadmap of considerations when crafting your post re-entry telework policies:

1 – Make telework determinations based on the functions of the job, and not mere managerial preference.

2 – Treat employees with similar work functions across work units similarly when determining telework eligibility.

3 – To the extent possible, try to align telework programs with employee needs and the business goals of each work unit to avoid a one-size fits all approach to telework participation.

4 – When possible, have consistent telework policies across locations.

5 – When possible, consider restructuring jobs so that all employees, theoretically, could be eligible for at least situational or occasional telework.

6 – Make all employees aware of the agency’s telework policy and criteria for telework participation.

7 – Require all teleworkers and supervisors of teleworkers complete appropriate training before entering into a telework agreement.

8 – Provide adequate telework training to supervisors on how to assess and manage the performance of teleworkers.

9 – If appropriate, allow some or all teleworkers to meet emergency operations or COOP duties through telework rather than reporting to the normal or designated COOP site. Encourage mission essential and non-mission essential employees to practice telework to help the agency prepare to meet emergency situations.

The OPM guidance also reminds agencies to complete applicable collective bargaining obligations before directing employees to return to the physical workspace. OPM wrote:

“While an agency has the right under 5 U.S.C. 7106(a) to determine the location where particular employees will work, there may be an obligation to collectively bargain on implementation of any decision to return employees from maximum telework status prior to implementation of this decision.”

This guidance will be discussed this Friday during The 2021 Telework Challenge, the fifth and final day of FELTG’s Post-Pandemic Federal Workplace: Managing Accountability and EEO Challenges. You can still register for any of the remaining days, including Friday’s session. This latest OPM guidance will be wrapped into other upcoming training including EEO Challenges, COVID-19, and a Return to Workplace Normalcy, a 3½-hour training that kicks off FELTG’s Federal Workplace 2021: Accountability, Challenges and Trends. [email protected]

The To-Do List for the New MSPB Board Members

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By William Wiley, July 21, 2021

By now you probably have heard that the White House finally has nominated two individuals to be Board members over at the US Merit Systems Protection Board. After more than four years of the civil service having no oversight agency to protect the fundamental rights of federal employees, Cathy Harris and Raymond Limon are now grinding their way through the Senate confirmation process, hopefully to be confirmed sooner than later. Based on my many years working at MSPB, with 12 of the 20 Board members we have had in history, I think I can speculate with some degree of accuracy what awaits them once they get there:

  • When I joined the newly confirmed MSPB chairman’s staff in 1993, there were 62 holdover cases awaiting his vote. That felt like a HUGE number of cases to dig through, given that a Board member needs to vote on about five appeals a day just to stay even (i.e., a member who is voting out five cases a day is doing a full day’s work in service to our great country). Our next Board members will be facing a holdover backlog of almost 3500 appeals!
  • The Board will have to decide how it will attack this overwhelming backlog. The obvious options would be to address cases first-in/first-out (oldest first), work the removal cases first because they are the most serious matters within MSPB’s jurisdiction, or perhaps try to pinpoint pending cases that have the most significant controversial issues that need to be cleaned up ASAP so their principles can be applied to other cases. Or, quite frankly, any other way the Board decides to plow forward: alphabetical, random, or eeny, meeny, miny, moe. There is no legal standard nor precedence for the new members to look to when deciding how to move forward.
  • I say “the Board” because historically big decisions like this would be made through consensus of the sitting Presidentially appointed Board members. However, as a strictly legal matter, the new chair has the sole authority to make decisions like this. During the early days of the new MSPB, the hierarchy of decision-making and comity among the members will have to shake itself out. Although Board members have worked together (with occasional exception) with a respectable degree of deference and cooperation in the past, nothing guarantees that such mutual respect will carry forward into the future. By law, all three members cannot be from the same political party. As I understand it, the current two nominees are Democrats. A third member would no doubt be a Republican, and we’ve all seen what can happen when that happy mix occurs.

Speaking of a Republican appointee, I must admit that I’m unsure what’s happening there. Historically when confronted with multiple vacancies requiring a mix of Democratic and Republican nominees, a White House would seek suggestions from the Senate leadership of the other party for the out-party seats. Then, a package would be put together that incorporated who the White House wanted and who the leadership of the other party wanted into a nice uncontroversial package that would receive a prompt Senate confirmation vote. Has this White House decided not to package? Or is it going to accept an individual already nominated by the past Republican administration for the third vacancy at MSPB? Readers better connected than am I may have picked up on what’s going on, but I haven’t seen it from where I sit.

Aside from these incredibly important matters of Board protocol, each member will be considering several personal matters that are part of being a Board member:

  • Staff: MSPB employs a fine headquarters staff of career employment law attorneys. No doubt, some of those career attorneys will be detailed to each new Board member immediately once they take the oath and start considering cases. Beyond that initial period, each member will be allowed to select political appointees to serve as legal counsels, sort of like a federal judge would appoint law clerks. In many agencies, these second-level political appointees would be controlled by the Executive Office of the President or the Office of Personnel Management. A White House often has a long list of political supporters who would just love to have a good government job. However, by law the chair of the Board can make these political appointments without having to get approval from anyone else, 5 USC 1204(j). For those of you readers out there interested in a little career change, we can expect to see the new Board members quickly putting out recruiting feelers.
  • Issues: Some newly appointed Board members, especially those with extensive federal law experience, walk in the door with issues they want to address in a new decision with their name on it. Others may have to vote on several cases before they develop a feel of issues that really matter to them. One Board member I worked with had an alcoholic in the family, so he closely reviewed any case involving an alcoholic to make sure that the appellant’s rights were protected. Another member I worked with had represented unions in the private sector and strongly believed in the importance of independent decision-making by arbitrators. Another had grown up in a military family where adherence to rules and order was important. Just like Justices on the Supreme Court, each member will develop a particular interest in some aspect of federal employment law and devote significant time to making sure that issue gets well-analyzed in any final opinions that are issued.
  • The next appointment: As is true for just about any Presidential appointment in the executive branch, these jobs come with an expiration date. Although the law provides that a Board member’s term is for seven years, that seven-year period starts on March 1 of a particular year, regardless of when the individual is confirmed to serve in that position. To my knowledge, no one has ever served a full seven years as a Board member. One of the Board member positions to which this White House will be nominating an appointee expires in just about 18 months. So, unless an appointee is at the end of a career, he or she needs to be thinking down the road and working toward the next job. Very few individuals have used an appointment as an MSPB Board member as the steppingstone to an even higher-level government position.

And finally, there will be lots of odds and ends to decide:

  • Will the members consider and vote cases remotely, so they never have to come into the office?
  • Should the members personally discuss the arguments in the appeals before they are voted on?
  • Can the members engage in public outreach by speaking at conferences and seminars, or is their time better spent cloistered in some warehouse reviewing appeal files and reading case law while subsisting on energy drinks, caffeine tablets and meat-lovers pizza?

These new members will have an unprecedented herculean task before them. Although I was honored to serve on the three occasions I was tapped as counsel to a member, I am happy that I have now taken a downgrade into civilian life. I am hopeful that the new members and their staffs enjoy themselves in their service as much as I did. I appreciate the good that they are doing for our country by helping to keep the federal government based on deserved merit and not strictly political philosophy. May the force be with them.

Also, it would be a good idea for them to put a cot and pillow in the corner of their offices. [email protected]

Should Your Agency use Progressive Discipline or Performance Demonstration Periods with Probationers?

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By Deborah Hopkins, July 21, 2021

The question in this article’s title has come up a few times over the last several weeks, particularly during our flagship UnCivil Servant training classes.

We’ll give you the short answer, and then the longer answer.

Short answer: No.

Explanation: According to OPM, “The law and regulations specifically exclude probationary/trial employees from the procedures that require the use of an opportunity to improve. This exclusion is because the entire probationary period is similar to an opportunity period. These employees should receive closer supervision, instruction, and training as needed during the first year of their employment.” The same principle is true when it comes to discipline. The agency doesn’t have to justify its penalty in removing a probationer, so even minor misconduct that wouldn’t justify removal of a career employee can warrant a probationer’s removal.

As soon as there’s a performance or conduct issue, the law allows to the agency to remove the probationer, even if the offense is minor.

Here is why removing a probationer without a Demonstration Period or progressive discipline makes sense:

  • The proof necessary to remove a probationer is very low.
  • The action can be taken and effected in one day.
  • If the probationer is ALREADY having performance or conduct issues, just imagine how they might behave once their due process rights attach.
  • It expedites the process to get the position posted again.

Now, read the headline again and then check out the next piece of discussion.

Longer answer: Maybe, probably not, but if you do then you’d better realize WHY you’re doing it.

Explanation: If a probationary employee is already having performance or conduct issues, the supervisor needs to think very hard about whether the additional time and effort spent to coach, train, work closely with, mentor, and help the probationer along is worthwhile. Because once that probationer hits their one-year mark (in most jobs, anyway), they become a fully vested career employee where civil service protections attach. It’s still possible for the agency to take an action against a career employee, as FELTG readers well know, but the simplicity of a probationer’s removal cannot be overstated.

The below situations might be reasons why a supervisor decides to keep a probationer around:

  • The position is difficult to recruit for or the job is located in a remote place.
  • The benefit to the government of working with the employee outweighs the drawback to the supervisor.
  • The employee has a unique skillset that it is worth the extra oversight to keep that person employed by the agency.
  • The employee’s attitude shows willingness to learn and improve.
  • The misconduct cannot be forgiven, but the supervisor doesn’t think it requires the probationer’s removal.

Surely, there are multiple other reasons why supervisors might keep probationers around. And let me be clear: I am not advocating pro- or con- removal, one way or the other. I just think it is important to point out that probationers have very few rights to their jobs while in the probationary period. If an agency is having a problem with a probationer, that supervisor should think very hard about making life easier and handling the problem now. However, if the supervisor thinks there’s hope for the employee, I can absolutely understand and support that position as well. Regardless of your stance on this issue, best of luck with all your probationary employees.  [email protected]

Don’t Just Flag Hostile Symbols; Do Something to Stop Them

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By Dan Gephart, July 21, 2021

Residents from our cozy colonial-era town of Haddonfield, NJ, returned in droves to this year’s July 4 parade. (Last year’s parade was canceled due to COVID.) The streets were packed with enthusiastic and smiling (no masks!) residents, who watched as the Shriners drove circles in their tiny cars, a group of Mummers strutted, and the town’s oldest resident (102 years young) waved from a convertible.

The Stars and Stripes was ubiquitous. Parade-watchers held high the tiny flags handed out by the local Boy Scout troop, while larger American flags fluttered from every light pole in town.

As we walked home after the parade, I noticed our town was full of flags, and not all of them Old Glory. Flag makers reported an increase in sales during the pandemic, and we were seeing the results of it. I’m guessing it had something to do with people spending more time stuck at home.

The Rainbow Pride flag was the one we saw most. We saw a couple of Thin Blue Line flags. A Black Lives Matter flag hung from a porch. Another bright flag summoned us to celebrate summer, while another shouted “Freedom!” The one that made us laugh was giant black flag with white lower-cased letters spelling “freak.”

And on the corner a couple of blocks off the main street was a house flying the Gadsden flag. That’s the one depicting a rattlesnake with the words “Don’t Tread on Me” over a yellow background. If you’re in the Federal EEO community, you may know the Gadsden flag from the EEOC’s decision in Complainant v. US Postal Service, EEOC Appeal No. 0120141334 (June 20, 2014). Or, you probably know it from the clarification the EEOC sent out after its ruling:

The EEOC noted that while the Gadsden Flag originated in a non-racial context, it has since been “interpreted to convey racially-tinged messages in some contexts.” The EEOC cited its use by persons associated with white-supremacist groups who used the flag to drape the bodies of two police officers they had just murdered, and its display at a Connecticut fire house that was met with protests by African-American firefighters, ultimately resulting in the flag’s removal. The EEOC underscored the fact that it did not find that the Gadsden Flag in fact is a racist symbol. Instead, the EEOC found only that the complaint met the legal standard to state a claim under Title VII, and therefore should have been investigated by the USPS rather than dismissed.

With the rise of white supremacist and anti-Semitic groups, flags have taken on meanings that may not be that obvious. The Gadsden flag isn’t the only one that’s been appropriated by hate groups.

To the left is a flag based on a Benjamin Franklin cartoon published in 1754, urging the eight colonies (all New England is represented as one) to unite.

A few years ago, the Philadelphia 76ers embraced the Franklin cartoon for their NBA playoff logo, a flag of which can also be seen flying from a house on my block these days. [Sidenote to that neighbor: Are you lazy or what? That Game 7 loss to the Atlanta Hawks was nearly a month ago. Why must you keep reminding me of that disappointment?]

Meanwhile, white supremacist groups have seized on the cut snake logo, as seen by the poster that promoted the deadly “Unite the Right” rally in Charlottesville. Instead of uniting colonies, the poster proposes uniting hate groups.

During the video replays of the Insurrection at the Capitol, I saw numerous flags and symbols that I did not recognize, but later read were used routinely by white supremacist groups. Undoubtedly, those flags and symbols would create a hostile work environment if displayed in an office.

You don’t have to be a vexillologist (flag expert) to ensure a discrimination-free environment, but you do need to know the elements of a hostile workplace, which are:

1)    The conduct is unwelcome. That conduct could be words, jokes, touching or objects and pictures displayed.

2)    The conduct is based on a protected EEO category: race, color, national origin, religion, gender, disability, age, genetic information, or reprisal.

3)    The conduct is severe and/or pervasive.

If a flag heralded by a white supremacist group is displayed in your workplace, I’m pretty sure it’s going to check off all the boxes. (For a thoughtful legal analysis of a more challenging potentially hostile environment case, read FELTG President Deborah Hopkins’ Does Saying ‘All Lives Matter’ Create a Hostile Work Environment?)

The next step is up to you: It’s your responsibility to protect employees from harassing conduct.  Take action. Immediately. An example of what not to do can be found in Complainant v. United States Postal Service (Southeast Area), EEOC Appeal No. 0120132144 (Nov. 1, 2013). In that case, the EEOC reversed the agency’s final order and remanded the matter to the agency because it found that complainant had established that he was subjected to unlawful harassment based on race and the agency was liable for harassment.

In this case, the offending objects were t-shirts emblazoned with the Confederate flag worn by two white clerks. Initially, the AJ, while finding discrimination, did not find agency liability. The Commission saw it differently.

The shirts were worn about a dozen times over several months starting in August 2010. The agency took no action against the shirt-wearers until prompted to do so by a union grievance in May 2011, when one of the clerks was sent home to change. In fact, at one point in April 2011, the clerk was told there was “nothing wrong” with his shirt.

The agency’s supposed corrective step was a stand-up talk about work attire. During that talk, however, employees were never instructed not to wear or displays images of the Confederate flag.

When symbols of hate take hold in the federal workplace, there’s no room for mixed messages. [email protected]

Mamma Mia, Here We Go Again: Commission Reminds Agencies About Joint Employment

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By Meghan Droste, July 21, 2021

Repetition can be a good thing.  That’s why practice makes perfect, and you measure twice before cutting once.  We repeat things to make sure we get them right. But repetition isn’t always a good thing. Sometimes, it means that we’re not learning from our mistakes. And in a recent decision, it seems like the Commission may be tired of repeating itself on the issue of agencies improperly dismissing complaints from contractors.

In Alfredo S. v. Department of the Army, EEOC App. No. 2021001400 (June 7, 2021), the complainant was a Lockheed Martin employee working on a military base. He filed an EEO complaint alleging a hostile work environment and a discriminatory termination of his employment. The agency dismissed the complaint without an investigation in a decision that did not describe “any relevant facts, case law, or analysis …”  The agency merely stated that the complaint failed to state a claim because the complainant was not an employee or applicant for employment.

After reciting the standard description of joint employment and the various factors it weighs in determining whether an agency is a joint employer, while also noting that the agency “has not even touched on any supportive evidence in its decision,” the Commission took issue with having to repeat itself in these types of improper dismissals. It notes that “[t]his is not the first time a dismissal for lack of standing, by this Agency, has been found to be deficient.” (emphasis in original). The Commission addressed the agency’s analysis of the joint employment factors, presented for the first time in its response to the complainant’s appeal. The Commission rejects the analysis, finding it insufficient and not supported by the evidence presented in the appeal. In part, the agency’s argument failed because it did not conduct an investigation and, therefore, did not have relevant documents to support its arguments, including a copy of the contract with Lockheed Martin and documents relating to an earlier complaint raised by the complainant.

Although, in this decision, the Commission is taking issue with this specific agency, it could write the same thing in reference to many other agencies. Unfortunately, this remains a recurring mistake across the federal government, with agencies seemingly automatically dismissing complaints from contractors without any analysis, or with an analysis that places too much emphasis on the language of a contract and fails to acknowledge or address the day-to-day reality of a complainant’s work situation. There are at least seven other decisions already this year involving the same issues with other agencies.

I strongly encourage you not to repeat this mistake as so many others have already. It is not a winning strategy. It only results in delaying the inevitable — a complete investigation of the complainant’s allegations along with evidence regarding joint employment. [email protected]

[Editor’s note: For guidance on handling contractor complaints, join FELTG for Day 3 of EEOC Law Week on September 22 from 9 am – 4 pm. For more information or to register, click here.]

Return to the Office and the Telework Tango

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By Michael Rhoads, July 21, 2021

When I was a Rotary foreign exchange student in Argentina, the hardest thing this Yankee with two left feet did was learn the basic step of the tango – an intimate and graceful dance once mastered. The key to dancing the tango well is learning how to communicate to your partner the next step you want to take to avoid stepping on toes – or even worse, tripping over one another altogether.  Just like any novice, I had my fair share of trips and sore toes while learning.

The pandemic forced us to learn new moves and ways of working. Now that we’ve learned how to telework, employees and managers alike are now faced with a new question: How much telework is the right amount?

Return to Work?

This return to work will not be as cut and dry as simply returning to the office and resuming what was once considered “normal.” After successfully teleworking for over 16 months, many employees will want to retain some of the flexibility that telework provides.

Federal agencies are in the phased re-entry period, defined by the Biden Administration for the White House as July 6 – July 23.  FELTG recently hosted a webinar dedicated to getting your agency’s return to work guidance ready, which was due July 19th.

It will be important for you to look at your agency’s guidance when considering an employee’s request for telework. In the meantime, OMB has offered some guidance and recommendations. When dealing with employees who are currently teleworking, OMB recommends flexibility. M-21-25 states the government is: “Open with maximum telework flexibilities to all current telework eligible employees, pursuant to direction from agency heads.”  When scheduling telework, consider whether in-person work is necessary to “satisfy business operations, team-building, and other needs.” During the transition back to the office, your agency may also authorize telework for those with dependent care obligations.

Some employees are ready to return to the camaraderie and in-person interaction with co-workers. To ease the transition, some agencies have offered voluntary return-to-work as offices allow for increased capacity.

The Way Forward

The working relationship between managers and employees is as intertwined as two tango dancers.  There may be times you trip over one another but remember: Communication is the key.  If that communication is clear, you can avoid stepping on each other’s toes when the telework requests start to come in from employees.

While your agency is still trying to master the new telework dance, FELTG has looked at all the complexities of telework, and how your agency can navigate the changes and requests as employees transition back to the office.

Join us July 26-30 for The Post-Pandemic Federal Workplace: Managing Accountability and EEO Challenges. Our event will cover a broad array of telework challenges:

  • Holding teleworkers and other remote workers accountable for performance and conduct
  • Special telework performance and conduct challenges
  • OPM’s telework flexibilities; telework as reasonable accommodation
  • Agency options when employees refuse to report to the physical workplace

I’ll see you at the next milonga, and remember, we’re all in this together.  [email protected]