What You Should Know About SES Discipline

, ,

By Deborah Hopkins, May 21, 2021

While it’s rare to see an individual in the Senior Executive Service (SES) receive disciplinary action, every now and then an SES breaks bad, and agencies respond accordingly. During a recent UnCivil Servant training class [Editor’s note: Don’t miss our next UnCivil Servant class February 12-13, 2025], we received a number of questions about the process of disciplining a career SES, so I thought I’d share an overview with the FELTG Nation. As you’ll see there are some similarities between SES and non SES discipline – and a few significant differences. OPM has a helpful fact sheet on the topic.

An agency may take disciplinary action against a career SES member (covered by subchapter V of chapter 75 of title 5 of the U.S. Code) only for misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.

Unlike unacceptable performance cases, which rather than removal provide the SES with placement rights into another position, any career SES removed for disciplinary reasons has no placement rights.

How it’s the same 

Probationers. A probationary career SES member who was not covered by 5 U.S.C. 7511 immediately before SES appointment may be removed (in this context removal means fired) for misconduct. The employee must be notified in writing, and the action must be effective before the end of the last scheduled workday in the probationary period. For removals over conditions arising before appointment to the SES, the agency must provide advance written notice (the proposal letter) stating specific reasons for proposed removal, an opportunity to reply, and a written decision showing reasons for the action and the effective date.

Procedures for non-probationers. For suspensions greater than 14 days and for removals, the SES is entitled to advance written notice, at least 7 days to respond, the right to a representative, an impartial decision, and the right to appeal the action to MSPB.

How it’s different

Nexus. The “efficiency of the service” standard used for non-SES employees does not apply in SES discipline. However, if an agency wishes to take disciplinary action based on the appointee’s off-duty actions or misconduct, the agency must demonstrate a direct connection between the off-duty actions and the appointee’s ability to carry out the assigned responsibilities of his/her/their position.

No short suspensions. The law is silent on short suspensions for SES. OPM’s interpretation is that because there is no statutory authority for such action, agencies may not suspend an SES member for 14 days or fewer. However, agencies are not restricted from issuing a written reprimand for an offense that does not warrant a suspension or removal.

No demotions. By law, there are no demotions in the SES. That said, an agency is allowed to reduce the pay of a career SES appointee by up to 10 percent as disciplinary action for misconduct.

If the agency chooses this route, the SES must be:

  • Provided written notice at least 15 days in advance of the effective date,
  • Given at least 7 days to respond,
  • Given the opportunity to have a representative,
  • Given a written decision containing reasons for any pay reduction, and
  • Given an opportunity to request reconsideration by the agency head within 7 days of the decision.

There is no third party review of this type of pay reduction. Sometimes, in lieu of a pay reduction, an agency will remove the SES member for misconduct, and then appoint them into a GS-15 or 14 position.

I hope this helps clarify the specifics on disciplining an SES. Next time, we’ll tackle SES performance. [email protected]

Position Descriptions and Performance Plans – Part I

, ,

By Barbara Haga, May 19, 2021

If one more supervisor says to me, “If it’s not in the performance plan, I won’t be able to hold the employee accountable for this,” I’m going to scream. There are a lot of things that employees are expected to do or requirements that they are expected to meet that aren’t performance plan matters. Performance plans are likely much more visible to employees and managers because they are reviewed a couple of times each year at a minimum. But position descriptions are the foundation for many human resource decisions, and well-crafted ones can help your organization in many ways.

This month, we are going to look at what position descriptions are supposed to be and how to get that foundation firmly in place. We’ll address how the position description ties in with the performance plans in a future column.

 According to OPM’s FAQs on classification, a position description (PD) is “… a statement of the major duties, responsibilities, and supervisory relationships of a position. In its simplest form, a PD indicates the work to be performed by the position. The purpose of a PD is to document the major duties and responsibilities of a position, not to spell out in detail every possible activity during the workday.” The position description describes not only the major duties and responsibilities, but it also describes the conditions under which that work is performed, such as the when the employee has the latitude to apply judgment to interpret guidelines. It explains what kind of supervisory review is expected.

Up to date and accurate

Having an up-to-date and accurate position description is important. They are not necessarily fun to write, but they are the underpinning for multiple issues supervisors have to deal with. For example:

  • Position descriptions provide information that is used to determine qualifications for the position – knowledge and experience and physical (and sometimes mental) standards that must be met. For example, criminal investigator positions require emotional and mental stability in addition to the requirements for dexterity, vision, and hearing, etc.
  • Position descriptions establish special requirements, such as the need for a security clearance, necessity for holding certain licenses or certifications, extensive travel, significant amounts of overtime, and more. While some of these are not qualifications per se, they are necessary for successful performance in the position.
  • The position description should be the beginning of the selection process. When you are developing questions for the applicant and the references (yes, plan out questions for the current and past supervisors, too) you should be referring to the position description. This isn’t just to ensure you covered the major duties in your questions, but also that you covered how the work got done. Let’s look at your HR Specialist, GS-13 position: What kind of review did your supervisor conduct of your disciplinary letters? Did you have authority to contact your headquarters to obtain an opinion on a complex topic or were you required to raise these issues with your supervisor first? For a reference you might ask, when Mr./Ms. ______ prepared disciplinary letters, what kind of review did you conduct?
  • The position description should be the first step in the interview. Assuming you have an in-person interview, I recommend having the employee read it outside the interview room before you ever begin asking questions. (Please don’t ask them to read it while three people on the panel watch them.) This aids the applicant in understanding what your job is all about, so he provides more responsive answers to your questions. Also, he may have missed some of those special requirements that were mentioned in the job announcement, such as extensive travel, a certain license or certificate, or the ability to walk around the campus on foot to attend meetings. When the applicant sees those in the job description, he may ask questions about that and potentially withdraw if that doesn’t work for him.
  • Employees who occupy positions with physical requirements can be ordered in for physical examinations to determine if they meet the requirement(s) (See 5 CFR 339.203). Physical requirements are set for specific positions. They have to be essential for successful job performance and they must be clearly supported by the actual duties of the position and documented in the position description.  Perhaps you have a group of eight Contract Specialists, GS-12.  Only one of them has to provide service to a group located at a remote site 80 miles away. There’s no reasonable way to get there except to drive, so the individual has to be able to maintain a driver’s license and must also have the capabilities to safely operate a government vehicle. That person could be ordered in for a physical to make sure they could safely perform that function, even though the other seven contract specialists would not be subject to such a requirement.
  • It’s late on Friday, and your friendly HR Specialist left for the day. You’re a manager and you’re not sure if one of your employees is in the bargaining unit. You need to conduct a pre-action interview and you don’t know if you should observe the Weingarten provisions in your contract. Where can you find the information? Normally it’s on the cover sheet of the position description identified as a Bargaining Unit Status (BUS) Code. Or, you just found out about a rush project that needs to be taken care of on Saturday. You offered one of your employees compensatory time if she would come in on Saturday and take care of it, but she declined. Now you’re trying to figure out whether you can require that employee to work extra hours for comp time.  But, you need to know if the employee is Exempt or Non-Exempt to make that decision. That’s conveniently included on the position description cover sheet, too. These decisions depend on what kind of job it is, the authority it has, the controls it operates under, etc.

I could go on, but I think you can see that there are myriad things that position descriptions accomplish. I’m not exaggerating about that being the foundation.  We all know what happens when you have a faulty foundation

4 Tips to Prepare for Increase in Requests for Accommodation, Telework

, ,

By Dan Gephart, May 19, 2021

As we careen toward the eventual return to workplace normalcy, it’s a good time to take stock of where we are as a workforce after more than a year of pandemic-enforced remote work.

Although not geared to the federal workforce, a recent survey of US- and UK-based employers conducted by Arizona State University and the Rockefeller Foundation provides a great snapshot.

Let’s start with the good news. Most employers say that employee engagement and productivity are up. Even better, 44 percent of employers surveyed say morale has risen as well.

The bad news? Employers are seriously concerned about mental health. Half of those surveyed have increased the use of available company resources related to mental health since the pandemic began.

I surmise three points from the survey:

  1. Telework was more successful than many thought it would be.
  2. There will be a significant increase in reasonable accommodation requests by employees dealing with mental health challenges, and many of those will likely be for anxiety disorders.
  3. Many of those accommodation requests will be for telework.

As the moderator for many FELTG webinars and virtual training events, I relay your questions to our presenters. So I know that few things cause more anxiety for federal supervisors as reasonable accommodations and, more specifically, requests for telework. But here’s the thing: If you’re too worried to address employee anxieties and other mental health issues, then that increase in engagement and morale is going to sink faster than an Elon Musk comedy skit on Saturday Night Live. So I’m offering four tips for you to keep in mind for the upcoming months:

  1. Don’t delay the interactive process, and take the right approach. Let me repeat: Do not delay. I can’t tell you how to feel, but if you’re seriously trying to avoid this process, then you may be in the wrong position. The law requires prompt action. This is the stuff that being a federal supervisor is made of. The employee has the best information about his/her/their functional limitations. You, presumably, have the best knowledge about the work. Go into the process with an open mind and work with the employee to find the most effective accommodation.
  2. Don’t be afraid to ask for medical documentation, and ask for the right information. Agencies are entitled to medical documentation as part of the reasonable accommodation process. But that information must be related to determining the existence of a disability and the necessity for an accommodation. Anything beyond that is not necessary. Remember there are two reasons you may want medical documentation. Yes, you want to substantiate the need for accommodation. But the medical documentation can also help you understand the functional limitations. Keep in mind that supervisors don’t generally handle medical documentation, so check your agency’s policy on who is responsible for these requests.
  3. Don’t automatically rule out telework, and ensure there is accountability. Look, skepticism about telework may be warranted at times, but it’s about as fashionable as socks and sandals on a middle-aged man. Remember the study at the top of this story? Productivity is up while employees work en masse from home. Depending on the job, many people can work from home. Maybe the problem is you? Out of sight should not mean out of mind. Find the best way to monitor the work and stay engaged with the employee. And if performance slips, hold the employee accountable using the FELTG tools, just as you would if the employee worked in a cubicle outside your office.
  4. Don’t get frustrated, and get some training. As always, FELTG has multiple opportunities for you to get up to speed on these issues. Here are a few:
    • June 2: EEO Challenges: COVID-19 and a Return to Workplace Normalcy. In this half-day virtual training, attorney Katherine Atkinson will provide guidance on a whole host of challenges involving vaccines, pandemic-related harassment, and more. She’ll also provide a framework for handling these challenges that you can apply to other yet unforeseen challenges.
    • July 13: Disability Accommodation in 60 Minutes. During this installment of our annual Supervisory Webinar Series, FELTG President Deborah Hopkins will cover the requests for accommodation, the interactive process and much more, all in one hour.
    • Starting July 15: Reasonable Accommodation in the Federal Workplace. This five-webinar series will tackle several reasonable accommodation challenges, including specific sessions on Accommodating Invisible Disabilities (July 22) and Telework as a Reasonable Accommodation (July 29).
    • July 21: Dealing With Mental Health Challenges During and After the COVID-19 Pandemic. During this half-day virtual training, Licensed Clinical Social Work Shana Palmieri will de-stigmatize the truth about “mental illness” and will explain the impact various mental health conditions have on individuals, and those with whom they work. She’ll also provide strategies for effectively supervising and managing employees with these conditions, whether they’re in the office or working remotely. [Editor’s note: Read Shana’s article Impact of COVID on Stress, Mental Health]
    • July 26-30: The Post-Pandemic Federal Workplace: Managing Accountability and EEO Challenges. This weeklong event (each day of training runs from 12:30 – 4 pm ET) offers the most timely and up-to-date accountability and EEO training you’ll find. And it culminates on the last day, when you get to apply everything you learned earlier in the week about managing conduct, performance, leave issues and EEO in a telework setting.

Keep an eye out for other upcoming FELTG webinars and virtual training events. [email protected]

Impact of COVID on Stress, Mental Health

, ,

By Shana Palmieri, May 19, 2021

A comparative analysis completed by the NHIS and U.S. Census Bureau shows an increase of 11 percent of adults reporting symptoms of an anxiety or depressive disorder in January-June 2019 compared to 41.1 percent in 2021. A variety of stressors as a result of the pandemic contributed to this increase and continue to impact stress levels including:

  • Financial stressors
  • Social isolation
  • Fear and uncertainty of the future
  • Remote school learning
  • Loss of loved ones to COVID

As the stressors continue, the initial acute stress experienced as a result of the pandemic can transition into chronic stress causing a lasting impact with serious symptoms for many.  Chronic stress is a prolonged state of stress that does not give the body an opportunity to activate the relaxation response.  There are numerous negative consequences from a constant state of physiological arousal caused by the body maintaining a chronic stress response.

Symptoms of chronic stress include aches and pains, decreased energy, insomnia, fatigue, difficulty with concentration, gastrointestinal problems, headaches, anxiety, depression, decreased immune response, irritability, nervousness, feeling a loss of control and helplessness.

If chronic stress is left untreated, it can turn into more serious conditions including major depressive disorder, anxiety disorder(s), diabetes, heart disease, high blood pressure, hyperthyroidism, ulcers and weight changes.

[Editor’s note: On July 21, Shana will present Dealing With Employee Mental Health Challenges During and After the COVID-19 Pandemic.]

Returning the body to a state of relaxation is pertinent for the healing process to begin. Healing the body from the impact of chronic stress takes consistent effort and the constant practice of healthy habits.  Stress reducing habits to heal from chronic stress include:

  • Healthy sleep patterns – at least 7-8 hours a night
  • Daily exercise
  • Yoga/mindfulness meditation practice
  • Healthy diet
  • Connection through healthy relationships
  • Setting boundaries to maintain work/life balance
  • Talking with a therapist

Keeping the body in a healthy, relaxed state through the practice of healthy habits will create a state within the body better able to fight illness and will reduce the physical and mental symptoms of chronic stress. If you are a loved one are experiencing suicidal ideation, help is available at the National Suicide Prevention Lifeline at 800-273-8255. [email protected]

Tips from the Other Side: Religious Accommodations for the Nonreligious

, ,

By Meghan Droste, May 19, 2021

This month, I’m wrapping up our discussion of issues regarding religious accommodations.  To recap, we’ve discussed the definition of an undue hardship in the context of religious accommodations (January), how far an agency can inquire into the sincerity of the religious beliefs or practices at issue (February), what an agency must do before raising an undue hardship defense (March), and the difference between a religious practice being part of a sincerely held belief and a voluntary activity that does not require accommodations (April).  For our last look at this topic, we’ll examine a slight twist on the issue — whether people who are not a member of a religious group are entitled to accommodations.

As you know by now, agencies have an obligation to provide accommodations, if doing so is not an undue hardship, to accommodate the sincerely held religious beliefs of employees. Unsurprisingly, we usually discuss accommodations in the context of an employee seeking to practice a specific religion (e.g. Judaism, Buddhism, Islam, Christianity). However, employees who are not members of a specific religion, and whose religious beliefs are that they do not believe in a higher being/divine spirit/god, may also be entitled to accommodations. How can this be? The Commission’s decision in Harmon v. Department of Transportation, EEOC App. No. 01950755 (Feb. 2, 1998), provides a good example.

In the Harmon case, the agency required employees with substance abuse issues to attend a mandatory drug rehabilitation program, specifically 12-Step Narcotics Anonymous (NA) meetings.  The problem for the complainant was that the NA meetings were religious-based; as an agnostic he found that the NA meetings caused him “extreme emotional turmoil and distress.”  In addition to compensatory damages he suffered as a result of the required participation in the NA meetings, the complainant sought an order directing the agency not to use religious-based drug rehabilitation programs for its employees.

In its decision, the Commission noted that an agency’s “duty of reasonable accommodation includes efforts to eliminate any conflicts between an employee’s religious beliefs and employment requirements, and to preserve the employee’s employment status.” The Commission then found that rather than ordering the agency not to offer religious-based rehabilitation programs, the appropriate approach was to offer non-religious programs as an accommodation to those employees, like the complainant, for whom religious-based programs conflicted with their beliefs.

In other words, the agency was required to provide secular programs to accommodate the complainant’s religious beliefs that the existence of god is unknowable or the beliefs of other employees that there is no god. Entitlement to religious accommodations (and freedom from harassment or discrimination based on religion) extend to those who do not identify with any religion — if they didn’t, many employees could be forced to participate in activities that violate their sincerely held beliefs, or treated differently simply because those beliefs do not take the form of a religion. [email protected]

OWCP Covers ARPA Steps, Definitions for COVID-19 Workers’ Comp Claims

, ,

By Frank Ferreri, May 19, 2021

With the American Rescue Plan Act (ARPA) looking to make it easier for Federal employees diagnosed with COVID-19 to file workers’ compensation claims, the Office of Workers’ Compensation Programs has put together updated guidance for processing coronavirus-related claims.

In FECA Bulletin No. 21-09, which supersedes Bulletins No. 20-05 and No. 21-01, OWCP addressed the processing of pre- and post-ARPA claims as well as what counts as “exposure,” why a CA-1 is required, and how employees must establish a COVID-19 diagnosis. The following chart highlights OWCP’s latest guidance:

Workers’ Compensation Considerations OWCP Guidance
Previously accepted cases COVID-19 FECA claims that were accepted prior to March 12 are not impacted because coverage for benefits had already been accepted. Because these aren’t ARPA cases, they are not subject to that law’s limitation that no benefits may be paid after Sept. 30, 2030.
Previously denied cases OWCP’s FECA program will review all COVID-19 claims previously denied to determine if claims can now be accepted under ARPA. If so, the employee and agency will be notified that the case will be reopened.
Previously closed cases No action will be taken on cases that are already administratively closed. Any future actions will be taken in accordance with ARPA since the claim had not been formally accepted.
Form-filing process The Employees’ Compensation and Management Portal should be used to file new claims, and ECOMP has been updated.
Use of the CA-1 OWCP considers COVID-19 to be a traumatic injury per 20 CFR 10.5(ee) because it is contracted during a single workday or shift. The agency also considers the date of last exposure prior to the medical evidence establishing the COVID-19 diagnosis as the date of injury.
Codes All cases filed after March 11 for COVID-19 will use the following codes:

·       Nature of Injury – COVID-19 (T9).

·       Cause of Injury – Exposure to COVID-19 (9C).

·       Location of Injury – COVID-19 (ZZ).
Employees covered The claims examiner should determine whether the employee is an employee under 5 USC 8101(1) and whether she was diagnosed with COVID-19 between Jan. 27, 2020, and Jan. 27, 2023. If the employee’s diagnosis does not fall within that date range, routine FECA case-handling procedures apply.
COVID-19 diagnosis To establish a COVID-19 diagnosis, an employee or survivor should submit one of the following:

·       A positive polymerase chain reaction COVID-19 test result.

·       A positive antibody or antigen COVID-19 test result together with contemporaneous medical evidence that the employee had documented symptoms of or was treated for COVID-19 by a physician.

·       If no positive laboratory test is available, a COVID-19 diagnosis from a physician together with rationalized medical opinion supporting the diagnosis and an explanation as to why a positive test result is not available.
Covered exposure An employee is deemed to have had exposure if, during the covered exposure period, she carries out one of the following:

·       Duties that require a physical interaction with at least one other person in the course of employment duties.

·       Duties that otherwise include a risk of exposure to COVID-19.
Covered exposure period The evidence should establish manifestation of COVID-19 symptoms or a positive test result within 21 days of the covered exposure.
Teleworking employees An employee who is exclusively teleworking during a covered exposure period is not considered a “covered employee.” In that case, routine FECA case-handling procedures apply.
Death claims In death cases, the FECA program will ask for evidence and records to support that the death was the result of COVID-19 or that COVID-19 was a contributing cause of death.
CA-16 When an employee uses ECOMP, the agency will be prompted to provide a CA-16 if they do not substantively dispute the employee’s description of cause and nature of injury. Issuing the CA-16 will allow the employee to obtain the necessary test to confirm COVID-19 and receive medical treatment.

 

EEOC Hearing: Pandemic Created Civil Rights Crisis for Many Employees

, ,

By Michael Rhoads, May 19, 2021

As Meghan shared this month, on April 28, 2021, the EEOC held a Hearing on the Civil Rights Implications of the COVID-19 Pandemic. Several experts weighed in on how the EEOC can assist workers and employers as we move forward toward reopening the physical workspace and addressing the civil rights crisis exacerbated by the pandemic.

The experts who gave testimony touched on an array of topics, such as helping caregivers return to the workforce, increasing empathy in the workplace, sexual harassment during the pandemic, predictions as to when employees will return to the physical workplace, and how to help teleworkers.

In her opening statement EEOC Chair Charlotte A. Burrows stated: “The purpose of today’s hearing is to examine the workplace civil rights implications of the COVID-19 pandemic. The past 12 months have been frankly, incredibly difficult for the American people. It’s been clear for some time that the pandemic is not only a public health and economic crisis, but truly a civil rights crisis. While every single one of us has experienced challenges during this pandemic, it’s important to recognize that the pandemic hasn’t impacted everyone in the same way. The COVID-19 crisis has exposed and intensified existing inequalities in our society. As employers seek to juggle telework, keep employees safe and stay up to date with the latest public health announcements, to name just a few of the challenges, we should help them as much as possible to understand specific equal employment opportunity issues arising due to COVID-19.”

Returning caregivers to the workplace

Childcare providers have been especially impacted by the pandemic causing them to leave the workforce or reduce the number of working hours.  Commissioner Andrea R. Lucas asked Ms. Fatima Goss Graves, President and CEO, National Women’s Law Center, to address these concerns by asking her directly: “What best practices do you recommend employers implement to handle applicants with extended gaps in employment either due to the pandemic or caregiving obligations in general?”

Goss Graves pointed to a current trend where some employers have outsourced their hiring process using AI technology, which would automatically eliminate applicants with employment gaps.  This may have a disparate impact on women who may have needed to take time off during the pandemic to care for a child, spouse or other family member.

“One in six childcare providers left during this pandemic and have not yet fully come back,” Goss Graves said. So if you have a rule that’s going to have a disparate impact on women outsourcing. It is not a solution.”

Harassment during the pandemic

Commissioner Keith E. Sonderling asked Goss Graves about the “new and unique types of harassment” are appearing as a result of the pandemic.

“What we have found is that in our intake at the TIMES’S UP Legal Defense Fund, is that about 7 out of 10 people report that when they experience harassment, they are also experiencing retaliation when they try to use their employer’s systems,” Goss Graves said. “But I do think it’s important to speak to what harassment is looking like in the context of COVID. People might be under the misimpression that just because people are working virtually that harassment doesn’t occur. It’s occurring, it just happens virtually.”

A more empathetic workplace

Johnny C. Taylor, president and CEO for the Society for Human Resource Management said American workforce us facing “an empathy deficit today … that significantly impairs our ability to provide every American worker equal opportunity to work and to do so free from harassment and discrimination.”

He continued, “Think about it. We’ve had laws on the books forever about sexual harassment and other workplace forms of discrimination. But at the of the day, it is empathy that keeps us all doing the right thing.  Building our empathy muscles will be critical to economic and business recovery because empathetic workplace cultures retain the best and perform the best.”

Taylor predicted there will be two waves of workers returning to the workplace.  The first will be after the July 4 holiday and the second will be after Labor Day.

He predicted the second wave, after Labor Day, will be larger, “because presumably children will be going back to school and there’ll be less childcare concerns for our employees who are having to take care of their children who can’t find the appropriate childcare and or schooling.”

Supporting teleworkers

While the pandemic has necessitated working from home for those with job flexibility, some employees have felt isolated and depressed without the daily interaction that occurs in the workplace.

“As extended remote work continues for some personnel, and we are doing that, we are seeing gains in the percentage of employees across industries, experiencing depression, hopelessness, feeling of failure and reduced concentration.” Taylor said. “All of that obviously directly impacts an employer’s product and/or services. EEOC’s partnership in establishing best practice guidance when safely returning employees to physical work sites, safety standards, and vaccination education are areas where the EEOC could assist stakeholders during their operational analysis.”

FELTG instructor Shana Palmieri will tackle this on July 21, 1:00-4:30 PM ET in Dealing With Employee Mental Health Challenges During and After the COVID-19 Pandemic.

In a press release, Chair Burrows concluded: “Today’s testimony makes clear that, while the pandemic continues to have serious impacts on public health and our economy, it has also created a civil rights crisis for many of America’s workers.  All of us have a critical role to play in our economic recovery. We must come together to ensure that all employees can work free of discrimination and that everyone who wants to work has equal employment opportunities.”

We here at FELTG will give you up to date information from the EEOC and provide training that will support your agency’s mission.

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

Two Words for MSPB AJs Mitigating Removals to Demotions: Please Stop

,

By William Wiley, May 3, 2021

President Biden recently nominated Cathy Harris as Chair of the Merit Systems Protection Board, and hopefully soon he will nominate two other individuals who will provide us with a full Board. And you can bet that on behalf of The Nation, good old FELTG will have some recommendations for the new leadership to consider.

One of them is a cure for a complaint we’ve long expressed in this newsletter over the years, and which we will re-surface every chance we get. We were reminded of the problem in a court decision earlier this year, Lowe v. Navy, Fed. Cir. No. 2020-1564 (Jan. 11, 2021). That non-precedential decision contained nothing legally spectacular within itself, and resulted in the affirmation of the administrative judge’s decision in Lowe v. Navy, No. DC-0752-19-0053-I-2, 2019 MSPB LEXIS 4415 (Dec. 2, 2019). The problem that we hope the new Board leadership will correct is found in the AJ’s decision.

The Navy fired Mr. Lowe from the position of a GS-13 supervisor based on two charges. Finding one of the charges not proven, the AJ mitigated the removal to a demotion to a non-supervisory GS-12. And that’s what the new Board leadership should stop AJs from doing — mitigating removals to demotions. Here’s why:

We know nothing about the specifics of the work situation in which this appellant was employed. Theoretically, however, it could be a small organization, as would be the case in which any individual is fired from government. There is nothing in the record to show that when ordering the mitigation of the removal to a demotion, the AJ gave any consideration to the needs of the agency, its organization, and the availability of work for the appellant to perform once he is reinstated to a lower grade. It is conceivable that there actually is no GS-12 work available for the restored employee to perform in the organization from which he was removed.

To comply with the AJ’s mitigation order, the agency has to either find a vacant position elsewhere within another organization within the agency or create work that doesn’t actually need to be performed at the GS-12 level in the original organization. Perhaps there is an available GS-12 position within the agency, but at a location hundreds of miles away, thereby requiring that the employee be physically moved, perhaps against his will. Or, perhaps worst of all, assign the restored appellant to do lower-graded work while being paid at the GS-12 level, thereby violating all the rules of position classification and good government common sense.

Sure, the Navy is a big agency potentially with lots of available positions or work to be done that is not yet organized into a position. But what if the employing agency had been a much smaller one with limited work to be done? What if the appellant in this case had been located in a remote Navy facility, thereby necessitating an agency-funded PCS move to another work location to find GS-12 work? A board AJ is in no position to assess these organizational factors when ordering a demotion in lieu of a removal and should not mitigate a removal to a lower-graded position.

So, what should the new Board leadership direct AJs to do in a situation in which the judge decides, for whatever reasons, that some penalty is warranted, but the appealed removal penalty is too severe and demotion might be more reasonable? Ah, fortunately for humanity, we here at FELTG have a few options to recommend that the AJ can do:

1. Set aside the removal and restore the appellant to his old position. The agency has said, “This guy deserves to be fired because of the following reasons.” When it does not prove those reasons, then it loses. It would then be left up to the agency, upon restoration, to decide if a new penalty was warranted. If that new penalty was within the Board’s jurisdiction, the employee could file a new appeal. That would parallel what is done when a criminal prosecutor brings a charge of murder, but does not prove that the killing was premeditated or otherwise fully comports with the legal definition of murder. The jury doesn’t get to step in and rule that the individual should instead be found guilty of some separate charge that was not brought.

2. Set aside the removal and remand to the agency to reconsider the penalty in light of the AJ’s conclusions. The AJ could set a time limit for the agency to act and retain jurisdiction to review any new proposed disciplinary action to see if it is within the bounds of reasonableness. Upon finding that it is (or remanding again until it is), the judge would issue a decision that would be appealable to the Board, as is usual.

3. Set aside the removal and remand to the agency with specific options. The AJ’s initial decision could conclude with language like this, “Having found that removal exceeds the bounds of reasonableness, I hereby direct the agency to place the appellant into a non-supervisory GS-12 position within the same geographic area now employed, if one is available. If such a position is not available, then I find that the maximum penalty for the sustained charge is an X-day suspension.” That way, the agency gets to consider its organizational needs and work availability when deciding which penalty makes the most sense.

Position management decisions should not be made by Board judges. Reinstated employees should not have to be reassigned geographically to comply with an AJ’s reversal of a removal. The new Board members should develop another option for AJs to implement when they determine that the removal of a supervisor is beyond a reasonable penalty, other than demotion. [email protected]

Answering Questions on the New PIP Requirement, Post-Santos

,

By Deborah Hopkins, April 27, 2021

A couple weeks ago, Bob Woods and I held a webinar on the new PIP justification requirement issued by the Federal Circuit in Santos v. NASA, No. 2019-2345, (Fed. Cir. Mar. 11, 2021), that undid more than 40 years of case precedent. In case you missed the news flash, the law now requires agencies to have substantial evidence of poor performance before they can place an employee on a PIP – and they must present that evidence as part of their case in chief before the MSPB, should there be a performance-based removal. If you haven’t yet read the article, I wrote about it last month. You’ll want to take a look at that first before you keep reading: Say Goodbye to 40 Years of Case Precedent: Agencies Must Justify PIPs.

And if you didn’t attend the webinar, we’re holding a live encore webinar May 11, where we get into all the necessary details, requirements, and takeaways. Because this is the most significant case on performance since the very early days of the Civil Service Reform Act, it’s one you can’t afford to miss.

In the meantime, I thought I’d give you a preview of the kinds of questions that Bob and I received during the webinar. Please keep in mind that the information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship.

Q: How long does an agency need to show the employee was performing at an unacceptable level, prior to implementing a PIP?

A: The Santos case doesn’t give any indication about a minimum time period, it requires the agency show substantial evidence of unacceptable performance. Sometimes one mistake on one day could equal unacceptable performance; other times it might take a month or two for an employee to reach a certain number of exceptions to a standard, that causes their performance to become unacceptable.

Agencies shouldn’t feel obligated to come up with an arbitrary number of days to satisfy the requirement (we’ve heard some agencies advising anywhere from 30 to 90 days or more – eek!), but instead should look at the performance standards to be sure the unacceptable performance the supervisor has seen, actually matches the written standard for unacceptable. As soon as that happens, the PIP can be justified.

Q: Can the notification of unacceptable performance be part of the PIP? Our standard PIP normally includes language like “This is to information you that your performance is unacceptable” and gives examples. Is this adequate?

A: Yes, it sounds adequate. While FELTG recommends including the justification document as an attachment, this approach you’ve detailed should also satisfy the Federal Circuit’s requirement post-Santos to document pre-PIP unacceptable performance.

Q: For the “roller coaster” employee who, for example, “passes” the initial 30-day PIP, and receives notification that they passed, if they then later dip in performance and their performance warrants removal, is it necessary for the agency to provide another notice that the performance has dipped before removal? Without an intervening notice, the only notice the employee would receive before the removal is that they passed the PIP.

A: There’s no requirement in the law to provide notice, but we recommend at the conclusion of the PIP, to issue a “Performance Warning Letter” that lets the employee know they will be removed at any time between now and X date (the end of the one-year period, with Day 1 of the PIP starting the year) if their performance becomes unacceptable on the critical element(s) from the PIP.

If the employee falls back into unacceptable performance after successfully completing the PIP within the one-year period, the only notice they receive at that point is the notice of proposed removal, which will articulate their unacceptable performance that the proposed removal is based on.

Q: What are your thoughts regarding employees who, at times, perform “other duties as assigned” and are then placed on a PIP based on unacceptable performance on those ODAA? Is it still OK to place an employee on a PIP based on the observed unacceptable performance or is it better to stick to the critical elements outlined in the performance plan?

A: A PIP may only be used for unacceptable performance related to the critical elements in the employee’s performance plan. If the ODAA relates to a critical element, the agency is free to PIP. But if it’s something unrelated to any critical element, for example a special assignment because the employee is on covid-related telework, it would be inappropriate to place an employee on a PIP. Such a situation could be handled with the Chapter 75 procedures. We have a webinar on this topic May 13, Handling Teleworker Performance and Conduct Challenges, if you need more details.

Good luck with this new requirement. Let us know how it’s going out there. [email protected]

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

Are You a Microaggressor?

, ,

April 20, 2021

With deep sadness, we note the recent death of Ernie Hadley. Ernie was a founder and the first President of FELTG, and was a beloved instructor. He served the Federal employment law community for more than 30 years as a strong advocate for employee rights, and authored more than a dozen foundational legal texts in the field. Those of us fortunate to know him appreciated his quick wit, broad intellect, and compassionate heart. Ernie will be greatly missed.

Below, we share an article Ernie originally wrote and published in this newsletter in 2013. As you’ll see, with microaggressions now a major training point, Ernie was years ahead of the curve. Originally published in 2013 by the Federal Employment Law Training Group. Written by Ernie Hadley.

Several years ago, we took a family trip to Costa Rica. It was a great trip. We hiked, saw some extraordinary birds, walked on suspension bridges through the canopy of the cloud forest, visited a coffee plantation and, with my son Luke and daughter Mairead, I went zip-lining. (Not entirely sure I could be talked into the latter again.)

Part of the success of the trip was, no doubt, Costa Rica itself, but some was probably due to the fact that we knew with my daughter Jasmine leaving for college in the fall, this was likely to be last the vacation for the whole family in quite a while.

We reentered the U.S., in Miami as I recall, and approached the Customs and Border Protection checkpoint, passports in hand.  The officer, a young man probably in his early 30s, dutifully looked at each of our passports and, in turn, each of us. He asked each of the kids a few questions: What’s your birthday? What’s your home address? He stamped the passports and handed them back to me.

He then told the rest of the family that they could go but asked me to stay behind a few minutes. My wife asked if she could stay, as well, and with his assent, we sent the kids off to find our luggage.

“I didn’t want to embarrass your son in front of everybody,” he said, “but I can’t help but notice that he looks different from the rest of you.”  Well, you don’t really need to have the deductive powers of Sherlock Holmes to figure this one out. Luke stretches out to all of 5’2” and I doubt he’d eclipsed 5’ at that point. He has brown skin, very dark brown eyes and black hair.

You’ve probably guessed from the photo that sometimes accompanies these articles, that he doesn’t look like me at all — so much the better for him — or like my wife or his two sisters.  There was never any great debate over telling Luke he was adopted.

At the time, I wasn’t sure how to react. Part of me was relieved that he didn’t ask in front of Luke and his sisters. Part of me was offended because I believed the only reason for asking the question was the color of Luke’s skin.

To be honest, I don’t think our daughters, both of whom are biological, look particularly alike. Jasmine has brown hair and her mother’s height, which is to say not much, and my features. Mairead has blonde hair, my height and her mother’s features.  Obviously, the answer to the question had no bearing on our reentry into the country as our passports had already been stamped and returned to us.

The reason I write about this is that I recently learned there’s now a term for events like this — they’re called “microaggressions.”  As with all things these days, there’s even a website.   Microaggressions are the subtle and often subconscious ways that we use stereotypes.

Now, I don’t think that the agent who asked the question had any bad motive; certainly, not one that he conveyed. But it goes to the heart of a notion that we’ve tried very hard to convey to our kids. “Family isn’t about how you got here. The mere fact that you’re here makes you part of the family.”

Fast forward to just a few months ago. Luke was in Ireland studying at the Burren College of Art and I went to visit him. We were, as of course one must do in Ireland, sitting in a pub, sipping on a Guinness and listening to music. An older man, aptly named Declan and about three sheets to the wind, asked if he could sit at our table. No problem. After looking at Luke for a while, he asked “What’s a young guy like you doing with an old guy like him?”

“He’s my dad,” Luke said.

“Then your mom must be the one who’s Hispanic.”

“No,” Luke said.  “She’s not.”

“Oh, then he’s not your real dad.”

Luke then explained to Declan that, yes, he knew there were two people out there that’s he’s biologically related to but I was his dad and there was no real issue about it, just his dad plain and simple. Declan eventually wandered off into the night, no doubt confused by Luke’s insistence that he did not have a “real” set of parents and, presumably, a “fake” set but just a mom and dad like many other folks.

The Microaggressions blog gives several other examples:

H&R Block employee when my best friend (who’s black) and I went to get our taxes done together: “Employed?”

Me: “Yes.”

H&R: “Any children?”

Me: “No.”

H&R, turns to my friend: “Okay, and you. Employed?”

Him: “Yes.”

H&R: “Any children?”

Him: “No.”

H&R: “Are you sure?”

Him: “Um…”

H&R: “Just checking.”

Him: “Yes, I’m sure.”

I was at the bar with several new coworkers when I was approached by a white guy who told me I was beautiful and asked what my nationality was. I told him I was African-American and he asked, “But what are you mixed with? Who is white? Your mom or your dad?”  This made me feel angry and sad. It’s a shame that some people think black people must be mixed or biracial to be attractive.

Me: Hey, should I go to a steakhouse or to a sushi place for dinner with my family?

Friend: I think you should go to the steakhouse because you guys know how to make sushi, right?

Often when I have dinner at people’s houses, they ask me if I would prefer chopsticks, regardless of the meal!

I’m fine with gay people as long as they aren’t gay around me.

The gay couple who moved in next door are not as comically flamboyant as the gay people on TV. It’s like they’re not even trying.

I’m sure you can think of plenty of other examples, just as I’m sure that I’ve engaged in some microaggressions of my own.

Some of you may recall that I wrote recently about an EEOC African American Workgroup Report that concluded, among other things, that “[u]nconscious biases and perceptions about African Americans still play a significant role in employment decisions in the federal sector.” And, of course, that doesn’t apply to just African Americans. That just happened to be the focus of the workgroup.

It is the cutting edge of our field. Blatant discrimination still exists but, more often, it is being replaced by far more subtle forms of discrimination; forms that are harder to identify and, as a result, harder to correct.

So, let’s leave you with something a little more upbeat. For Luke’s sixth birthday, we had all the boys in his class over for a party.  Most of you can probably imagine what a herd of six-year-old boys can do to a house in a very short period of time, but that’s neither here nor there. They were all sitting around the table eating cake and Luke made mention of something we call Adoption Day.  It’s the day Luke’s adoption was finalized here in the United States and we celebrate it as a family holiday. It’s a low-key kind of celebration, usually marked by going out to dinner. Anyway, one of Luke’s friends looked at him wide-eyed and said, “Luke. You never told me you were adopted.”

These behaviors don’t come to us naturally.  We learn them.  And that gives me hope. [email protected]