Federal Employment Law’s 15 Minutes of Fame

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By Deborah J. Hopkins, February 10, 2025

Federal employment law is having a moment.

With the flurry of Federal workplace-related Executive Orders and memos issued over the past three weeks, media outlets are scrambling to keep up, and “experts” are jockeying for press and an opportunity to discuss the laws that govern the executive branch.

At FELTG, we’ve been teaching the law since 2001 – we have instructors who have been practicing it further back than that – and we want to caution you that before you rely on something you read in the media, be sure you vet the source.

To be clear, a lot of employment law experts are relaying accurate information during this crucial time. But just as many are not. Below are just a few of the myths we’ve encountered, with clarifications beneath.

MYTH: The ban on DEIA eliminates agency reasonable accommodation offices.

Clarification: Well, it shouldn’t and it better not, because the law requires agencies to provide the reasonable accommodation process to any employee or applicant who needs it. There has been some confusion, we think, because the “A” in DEIA stands for accessibility. OPM issued a memo on February 5 clarifying that agency RA programs and EEO complaint processes are not impacted by EOs 14148, 14151 and 14173.

The memo says, “[A]gencies should retain personnel, offices and procedures required by statute or regulation to counsel employees allegedly subjected to discrimination, receive discrimination complaints, collect demographic data, and process accommodation requests.”

MYTH: Administrative leave is always limited to 10 days per year.

Clarification: The Administrative Leave Act does indeed limit the use of administrative leave to 10 days per year. 5 U.S.C. 6329a. But OPM regulations, which were finalized in December 2024, clarified the 10-day limit applies only to agency investigations:

§ 630.1404 Calendar year limitation.

(a)    General. Under 5 U.S.C. 6329a(b), during any calendar year, an agency may place an employee on administrative leave for no more than 10 workdays. In this context, the term “place” refers to a management-initiated action to put an employee in administrative leave status, with or without the employee’s consent, for the purpose of conducting an investigation … The 10-workday annual limit does not apply to administrative leave for other purposes. After an employee has been placed on administrative leave in connection with such an investigation for 10 workdays, the agency may place the employee on investigative leave under subpart O of this part, if necessary (see 5 U.S.C. 6329b(b)(3)(A) and § 630.1504(a)(1))… (bold added)

Because the regulations are so new we don’t have any case law interpreting what “other purposes” might be covered. Historically, though, admin leave has been used for everything from voting to sending someone home after an accident in the workplace. We’ll likely soon learn whether the current large-scale administrative leave orders across some government agencies will meet the “other purposes” identified in the regs.

MYTH: A probationary employee can only be separated from service for performance or conduct reasons.

Clarification: As we’ve both written about and taught, probationary employees can be terminated quite easily (they must be given the reason in writing), and they have very limited appeal rights. 5 U.S.C. 7511(a)(1)(A)(i). Probationers are only afforded the right to appeal a termination to the Merit Systems Protection Board if their removal was based on:

  • Partisan political activity,
  • Marital status, or
  • Pre-appointment reasons.

See 5 C.F.R. 315.804-806; Starkey v. HUD, 2024 MSPB 6 (2024). Probationers also have the right to file a complaint with the Equal Employment Opportunity Commission if they believe they were terminated because of civil rights discrimination, and with the U.S. Office of Special Counsel if they believe they were terminated in violation of a prohibited personnel practice. So working backwards from the rights and corresponding case law, it appears any legitimate business-based reason for a probationary separation would afford a probationer no appeal rights. This is currently being tested as large swatch of probationary employees are being terminated from agencies, and unions are pursuing litigation over the terminations.

Also, I clarified this last week on a LinkedIn discussion: A supervisory probationary period is different from an initial appointment probationary period. If a supervisor happens to be in her initial appointment one-year period and also in her supervisory probationary period, then yes, she can be separated without due process (subject to those exceptions noted above). But the supervisory probationary period is different in that if an agency decides the supervisor is not a good fit in the role during the first year as a supervisor, the agency can return the supervisor to her previous, non-supervisory position or its equivalent, 5 C.F.R. 315.907(a). This does not give the agency a right to remove the supervisor, who has already successfully completed her probationary period, from service without due process.

Plenty more myths are circulating, with new ones almost every day, to stick with FELTG and we’ll help clarify during this very busy time. And if you have questions, please Ask FELTG. [email protected]

Upcoming Training on Executive Order Compliance

This article was updated with new information on wide-scale probationer terminations on February 14, 2025.

The information presented 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.

The State of the Civil Service: 2025 Edition

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By Deborah J. Hopkins, January 15, 2025

Quick facts:

  • MSPB has almost eradicated the backlog of nearly 4,000 cases it inherited in 2022.
  • The EEOC’s priorities have recently been focused on updated anti-harassment guidance and enforcing PWFA regulations.
  • The FLRA is still awaiting a Senate-confirmed General Counsel, a position that hasn’t been permanently filled in nearly 8 years.
  • OSC had its busiest year ever, between cases filed and Hatch Act activity.

Welcome to 2025, FELTG readers. With a new administration arriving in less than a week, we know some significant changes are expected in the coming days. But where are we today?

For the first time in who knows how long, we have ZERO vacancies at the top of the MSPB or FLRA, plus we have a Senate-confirmed Special Counsel and only one vacancy at the commissioner level at EEOC.

Over the past couple of years, we have been fortunate to interview a number of the individuals at the top of these agencies, so please check out the associated links to learn more about them. Now, let’s take a closer look at the major oversight agencies.

Merit Systems Protection Board (MSPB)

It’s almost hard to believe that after over five years of waiting, a Board quorum was returned to us less than three years ago. Since March 2022, when the quorum was restored, Board members have worked tirelessly to clear out the inherited inventory of 3,793 petitions for review that languished while the Senate refused to vote on nominations for half a decade. As of this writing, there are just about 100 cases remaining in the backlog. Talk about progress!

As far as who’s who, the current Chair is Cathy Harris, the Vice Chair is Ray Limon (whose term expires March 1) and the third Member is Henry Kerner (who was sworn in last June). We anticipate President Trump will appoint Kerner as Chair in the coming weeks, and we’ll keep you posted on who is nominated to replace Limon after his term expires. Harris’s term doesn’t expire until 2028 and Kerner’s in 2030, so we anticipate stability to remain in the Board over the coming months unless something unprecedented happens.

The Board usually publishes a few interesting reports each year, but we didn’t see anything new in 2024. I suppose the tradeoff is clearing out the case inventory. Hopefully, we’ll see some noteworthy research in 2025.

Equal Employment Opportunity Commission (EEOC)

The current chair at EEOC is Charlotte Burrows, and the vice chair is Jocelyn Samuels. Andrea Lucas and Kalpana Kotagal are commissioners, and there is one vacancy available for the incoming President to fill. Most likely the titles of chair and vice chair will be shifted under the new administration, but we don’t expect the commissioners to go anywhere. Their terms are five years, and traditionally, they do not turn over with the various administrations.

EEOC’s focus in 2024 included two major topics:

  • Updated Enforcement Guidance on Harassment in the Workplace, the first all-encompassing guidance in 25 years.
  • Implementation of the final regulations on the Pregnant Workers Fairness Act, which became effective in June.

In December, EEOC released Federal workforce statistics from FY 2021. The number of formal EEO complaints filed (12,200) was the lowest in seven years. That said, Federal agencies also hit a seven-year high in the amount of money awarded during the complaint process: $74.5 million.

We’ll see what develops in the EEO world in the coming weeks as we anticipate the incoming administration’s philosophical shift away from the focus on Diversity, Equity, and Inclusion (DEI) in 2025.

Federal Labor Relations Authority (FLRA)

FLRA leadership consists of three political appointees; all three are currently occupied. Susan Tsui Grundmann is the chair, and Anne Wagner and Colleen Kiko are members.

While the top is fully populated, there is still not a confirmed General Counsel. President Biden has nominated multiple people for the role, but the Senate has not confirmed. We anticipate a new nominee in the coming months. The last time this position was officially filled with a non-acting GC was in 2017. As a result, there are at least 270 unfair labor practice (ULP) filings held in abeyance until a nominee is confirmed.

With union rights likely to be challenged in the coming weeks, the FLRA could be very, very busy in 2025.

U.S. Office of Special Counsel (OSC)

Hampton Dellinger was confirmed as the Special Counsel in February, and in his short time at the agency, he has been public about his desire to increase transparency in the agency. Ideas include, but are not limited to:

  • Posting publicly a summary of allegations in matters where the Special Counsel has determined that there is a “substantial likelihood” that the information discloses a violation of a law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of authority, substantial and specific danger to public health and safety, or censorship related to research, analysis, or technical information and has referred the matter to the relevant agency.​
  • Posting publicly a summary of allegations in matters where OSC has issued a report concluding that a PPP has occurred or has advised an agency that OSC likely could establish the elements of a PPP. OSC will post the allegation to its website when the agency does not take corrective action in a timely fashion and the person making the allegation consents.

According to its FY 2024 report, OSC received 6,251 new cases, which is the highest in agency history – and a 45 percent increase over the average number of cases in FYs 2019-2023.

Because 2024 was an election year, the Hatch Act Unit was incredibly busy. OSC resolved 391 Hatch Act cases, a 40 percent increase from the last presidential election cycle. Check out FELTG’s recent interview with Hatch Act Unit Chief Ana Galinda-Marrone about other election-related trends in 2024.

That does it for now. We’ll keep you posted as new events unfold in Washington, DC, and around the country. Happy New Year, FELTG readers! I hope it’s your best one yet.  [email protected]

Related training:

The Good News:  In Formal Discussions, Subject Matter Matters

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By Ann Modlin, January 15, 2025

Quick facts:

  • Unions must have the opportunity to be present in formal discussions between bargaining unit employees and the agency.
  • There is some confusion about what constitutes a formal discussion.
  • The FLRA provides helpful guidance on when meetings concern personnel policy or practices or other general conditions of employment.

The Federal labor statute provides a union the opportunity to be represented at “any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment.” 5 U.S.C. § 7114(a)(2)(A) (emphasis added). Congress limited formal discussions to meetings involving those three topic areas. Or to put it another way, if the meeting does not involve one of those three topics, it is not a formal discussion.

Based upon questions raised frequently in training sessions on formal discussions, I think there is confusion about what meeting topics fall into the last two statutory topics: personnel policy or practice and general condition of employment. Fortunately, our good friends at the FLRA have guidance to help with any such confusion.

(PUBLIC SERVICE ANNOUNCEMENT: If you have not discovered the FLRA’s very useful guidance, you are missing out. The FLRA’s guidance documents highlight and summarize relevant case law on so many helpful topics: unfair labor practices, negotiability, information requests, and more. This article [PDF] focuses on Guidance on Meetings (9/1/15) (FLRA Guidance).)

The FLRA Guidance on formal discussions, like I noted above, states: “Congress specified the subject matters that can be formal discussions. If the meeting topic is not within one of the three subject matters, the meeting is not a formal discussion.” FLRA Guidance at 7 (emphasis added). I’ll cover the subject of “grievance” in a future newsletter article.

In assessing whether a meeting is a formal discussion, the agency and union need to properly analyze whether the meeting is about a personnel policy or practice or general condition of employment. Once again, our good friends at the FLRA are here to help.

The FLRA Guidance explains that “personnel policy or practice” means “‘general rules applicable to agency personnel, not discrete actions taken with respect to individual employees.’” Id. (emphasis added). The highlighted language is crucial, folks. Technically, lots and lots of matters fall under the rubric of “personnel policy or practice,” but that does not mean every meeting with an employee involves a “personnel policy or practice.” Similarly, pretty much every discussion with an employee could involve a “general condition of employment,” but the FLRA Guidance clarifies that for purposes of formal discussions, the meeting needs to cover “conditions of employment affecting employees in the unit generally.” Id. (emphasis added).

Examples provided in the FLRA Guidance may help you with this topic analysis. Meetings that count as formal discussions include discussion of enforcement of a dress code policy; addressing alleged management interference with rights under the labor statute; announcing a change in workweek and staffing; and discussing implementation of a compressed work schedule. Id.

The Guidance then states, once again, “[t]he formal discussion representation right does not apply to meetings related to discrete actions taken with respect to individual employees.” Id. The examples of meetings that are not formal discussions include a discussion between an employee and agency officials regarding an employee’s work assignments and job performance; a meeting related to an employee’s “last chance agreement”; an oral reply meeting in response to a proposed adverse action; or a meeting regarding temporary assignment of two unit employees.  Id. at 7-8.

Managers, employees, and union representatives often feel that any serious meeting with an employee or employees is a formal discussion – especially if it has negative implications for the employee (like a discussion on performance concerns). But that is not what Congress intended. If you do not trust me, trust the FLRA. The subject matter matters.  And that’s Good News. [email protected]

Related training:

Employee is Responsible for Breakdown in Accommodation Process

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By Frank Ferreri, January 15, 2025

Quick facts:

  • An ATF employee sought accommodations for stress she experienced from work.
  • The agency offered her, and she accepted, a transfer from a GS-9 to a GS-7 position.
  • The court did not consider the transfer a “forced demotion” and found the agency met its Rehabilitation Act duties regarding the employee’s accommodations.

From time to time, FELTG newsletters contain reminders that “reasonable” accommodations don’t always imply “preferred” arrangements. Such was the case in Kingsolver v. Garland, No. 2:23-CV-58 (S.D. Ga. Dec. 30, 2024), which held an agency didn’t have to provide a lateral transfer for an employee with a disability where no such transfer was available and that a request for indefinite leave did not trigger a request for FMLA as an accommodation.

A Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) employee had depression and cardiac arrhythmia. Due to increasing stress at work, she had an “uncontrollable” crying episode in her office. The employee’s supervisor advised her of ATF’s employee assistance program.

The employee took a two-week vacation, followed by a weeklong training. After she returned to the office, the employee asked for leave without pay (LWOP), a lateral transfer, or anything else to help her. The employee’s supervisor offered her “liberal use” of leave with a flexible schedule and explained the employee could take sick leave or annual paid leave. However, LWOP was not an option, and a lateral transfer was unavailable.

After the employee received the same options from a second-line supervisor, she submitted a letter from her doctor suggesting that her windowless office worsened her condition. In response, the agency moved her to an office with a window.

Eventually, the employee was given a transfer from her GS-9 position to a GS-7 role. After the transfer, the employee contacted the DOJ’s Equal Employment Opportunity staff to complain that the transfer was not a voluntary reassignment but instead a demotion that she was forced to take.

The employee brought action under the Rehabilitation Act, alleging disability discrimination because the agency failed to provide her with a reasonable accommodation.

What’s the law?

An agency unlawfully discriminates against an otherwise qualified person with a disability when it fails to provide a reasonable accommodation for the disability unless doing so would impose an undue hardship on the agency. The employee bears the burden of identifying an accommodation that would allow her to perform the essential functions of the job.

The court found a difference between coercing the employee into the GS-7 role and moving her into it to accommodate her. Looking to a Circuit Court case, Hargray v. City of Hallandale, 57 F.3d 1560 (11th Cir. 1995), the court noted five factors to determine whether an employer forced an employment action through coercion or duress:

  1. Whether the employee was given some alternative to resignation or demotion.
  2. Whether the employee understood the nature of the choice she was given.
  3. Whether the employee was given a reasonable time in which to choose.
  4. Whether the employee was permitted to select the effective date of the resignation or demotion.
  5. Whether the employee had the advice of counsel.

The court noted that while the employee was given about 24 hours to make her decision and did not have the advice of counsel, her supervisors kept her apprised of vacancies for “months.” She was given the alternative to take annual leave liberally or stay in her current position. Thus, the court found no basis on which to find that the agency denied her a reasonable accommodation.

Reassignment to a vacant position can be a reasonable accommodation, the court noted, even if an employee with a disability is qualified for and capable of performing another existing position, the employer is not required to reassign the employee if there is no vacancy. The employer is also not required to create a new position, transfer another employee, or promote the employee. In this case, “reassignment to a GS-9 or higher position would have required [the agency] to create a new position, transfer another employee, or promote her to a GS-12.”

Indefinite leave or FMLA?

The court also explained that LWOP is not generally a reasonable accommodation. The employee alleged she was seeking FMLA leave when she made her request for leave without pay and that the agency had the “responsibility” of making her aware of her FMLA rights.

The court pointed out failure to notify an employee of FMLA rights is an FMLA interference claim — not a disability discrimination claim. Despite receiving training on the FMLA, the employee never formally put in for FMLA leave.

“Thus, no reasonable juror could find in [the employee’s] favor because this ‘breakdown’ in the reasonable accommodation process was attributable to [the employee], not the employer,” the court wrote.

What about telework?

The employee also alleged telework could have been a reasonable accommodation. The court rejected this argument as at odds with the employee’s argument that stress was the cause for her need for accommodations.

“Because [the employee] has not shown how teleworking would allow her to perform the essential functions of her job or how it would address the limitations of her disability, [the employee] has not met her burden of establishing that this particular accommodation is reasonable,” the court wrote.

The court granted the agency’s motion for summary judgment on the employee’s Rehabilitation Act claims.

As the court wrote, quoting Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997), “‘liability simply cannot arise’ for a failure to accommodate ‘when an employer does not obstruct an informal interactive process; makes reasonable efforts to communicate with the employee and provide accommodations based on the information it possesses; and the employee’s actions cause a breakdown in the interactive process.’” In less court-ish language, when an agency takes steps like this one did to find a workable accommodation for an employee, there won’t be a failure to accommodate under the standards of the Rehabilitation Act.

There are some differences between what some of the courts say and EEOC’s stance on some of these matters, and as always, FELTG will keep you in the loop. [email protected]

Related training:

Avoid the Circus: Appropriately Consider Notoriety of the Offense

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By Dan Gephart, January 15, 2025

Quick facts:

  • The eighth Douglas factor is the notoriety of the offense and its impact on the agency’s reputation.
  • Notoriety may be considered as an aggravating factor when an employee’s misconduct has been reported by the media and, sometimes, even if it hasn’t been reported.
  • The seriousness of the misconduct, the employee’s position, and the agency’s mission are all considerations when analyzing the proper disciplinary approach.

P.T. Barnum reportedly said: “There’s no such thing as bad publicity.” Well, it’s a good thing the Greatest Showman never had to appear before the Merit Systems Protection Board or the Federal Circuit.

For misbehaving Feds, there is such a thing as bad publicity for misconduct – and it could lead to a removal penalty. The eighth Douglas Factor – one of 12 to consider when determining the penalty – is the notoriety of the offense and its impact on the agency’s reputation, and it plays an important role in determining nexus when misconduct occurs off-duty.

A few months back, FELTG President Deborah J. Hopkins shared an awful case involving a Federal employee who lured a 13-year-old boy into his house where he licked the child’s bare feet and toes. It’s not good for your agency’s reputation to have its name attached to this kind of behavior in Newsweek magazine. (Deb’s article was also one of our most-read and shared newsletter stories in 2024). The agency removed him based on two specifications of conduct that were unbecoming and relied on the publicity to prove the nexus.

Sometimes, however, the news doesn’t have to make it to a national magazine for its impact on the agency’s reputation to be considered. Reports in a local newspaper, radio station, or over social media will often count, regardless of circulation, listener ratings, or followers. Even internal agency notoriety can be relied upon.

Potential for publicity

In fact, sometimes the misconduct doesn’t need to be reported on at all.

Take the case of Stump v. DoT, 761 F.2d 680 (Fed. Cir. 1985). An air traffic controller was apprehended by the police for possession and use of cocaine while attending a rock concert in Jacksonville, FL. No criminal charges were filed. However, the police reported the incident to the FAA. After an internal investigation, the employee, who denied the charges, was removed. The employee appealed the removal to the MPSB, who upheld it. So, he appealed to the Federal Circuit.

Now, you’re probably asking: Where’s the notoriety here? Was this in the newspaper? Local TV? No, it wasn’t made public through the media. However, that didn’t matter to the Federal Circuit, which found:

Clearly, the public’s awareness of the use of drugs by an air traffic controller, even off-duty use, would detract from its confidence in the agency. While this incident may have received no publicity at the time, disciplinary proceedings are not secret.

Id. at 681-682.

The court is basically saying it is unnecessary to demonstrate the actual occurrence of publicity to establish the connection between off-duty conduct and discipline. The potential for publicity can establish the nexus.

Consider ‘potential’ carefully

In Knowlin v. VA, DC-0752-17-0703-I-1 (MSPB 2023)(NP), a GS-11 employee with the Veterans Benefits Administration was responsible for assisting service members being separated for medical reasons. The agency proposed the appellant’s removal for “disrespectful, insulting, abusive, insolent, or obscene language or conduct to or about … other employees, patients, or visitors.”

On her Douglas Factor worksheet, the proposing official wrote the appellant’s behavior “could have a negative impact” on the agency and those stationed at the appellant’s location. The behavior “could also be chronicled in the local media which would lead to additional scrutiny on the agency.” Id. at 95-97.

The MSPB found this analysis to be “purely speculative.” Id. at ¶11.

Nearly any misconduct by an employee has the potential for notoriety. In the absence of actual notoriety in the media or in the community, there was no reason to think that this counterfactual scenario should have been of special concern to the agency in this case.

Id.

And worse, the Board found the consideration of the notoriety of the offense to be an

an improper ex parte communication. The agency never let the employee know it was considering the aggravating factor until after it imposed the removal.

There’s a lesson: First off, make sure you provide the offending employee with the appropriate due process by including the Douglas factor analysis in the notice of discipline. Know and effectively apply all of the Douglas factors when determining penalty. And take into consideration the unique circumstances of each case, the egregiousness of the offense, and the agency’s mission.

[email protected]

Related training:

Three Questions: Hostile Work Environment Harassment in 2025

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January 15, 2025

FELTG instructor Katherine Atkinson will present Stay Up to Date: Hostile Work Environment Harassment in 2025 on Feb. 19 from 1 – 3 pm ET.  We asked Katie three questions as she prepared her presentation.

FELTG: You’ll be discussing the EEOC’s most recent guidance on harassment. What is the most important takeaway from that guidance?  

KA: It’s hard to say what the most important takeaway is from the guidance as it is very extensive – that’s why we need two hours for the class! There’s a lot of really important information. But if you are making me pick, I’d say the clarifications of any changes to the analysis of employer liability based on the identity of the harasser. The EEOC talks about who in an organization constitutes an “alter ego” of the employer and how liability attaches to such a person’s actions versus those of a standard supervisor or a non-supervisory employee. Thoroughly understanding liability analysis is so important, of course, because such an understanding can help employers stop and fix harassment so as to avoid liability.

FELTG: There seems to be confusion about what actually constitutes “harassment” that is actually actionable. How do you determine if it’s actionable EEO harassment?  

KA: Well, we will spend a fair amount of time on this in the class, but the super abbreviated version is that actionable harassment occurs where an employee was subjected to offensive, unwelcome treatment due to a protected category that was sufficiently severe or pervasive to alter the terms, conditions, and privileges of employment. But that sentence contains a bunch of legal terms, which I know can feel meaningless. During the class, I’ll break down what each of them mean, with emphasis on the new guidance. In particular, another possible answer I might have given to the last question is how the Commission clarified the relevance of a conclusion that the allegedly harassing behavior was “unwelcome,” so I am looking forward to talking that through with participants.

FELTG: Any thoughts on actions agencies can take to limit workplace harassment? 

KA: Send employees to FELTG classes! My fellow instructors and I love to talk to employees at all levels about the scope of employer liability, which includes explaining that harassing behavior constitutes misconduct and, thus, is actionable. So, even if attending FELTG classes is not an option – conveying to employees that harassing behavior is misconduct and taking action every time it occurs. The action should, of course, be proportional to the offense, but if employers stepped in every time an employee behaved inappropriately, I really believe we could root out harassing behavior in the workplace. Consequences are key to incentivizing good behavior. [email protected]

Now is the Time: How Do Your Performance Standards Measure Up?

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By Deborah J. Hopkins, December 11, 2024

Quick facts:

  • The end of the year is a good time to review performance standards for clarity.
  • If performance standards are vague, an agency can clarify expectations either before or during the PIP.
  • If the agency writes backward standards, the Board will overturn a performance-based removal based on those standards.

With a new year coming, now is an excellent time for supervisors to look at their employees’ performance standards and review whether they might benefit from clarification. As I always say in my performance classes: “Poorly written performance standards aren’t really a problem if the work is getting done – but they quickly become a problem if an employee’s performance is unacceptable.”

If the work is getting done, many supervisors don’t really concern themselves with how the standards are written until it comes time for annual performance appraisals. And although the regs say that at any time the employee’s performance becomes unacceptable, the agency should address the situation by implementing a PIP (5 CFR § 432.104), poorly written standards too often serve as a roadblock to accountability.

Sometimes, the supervisor decides to hold the employee accountable (hooray!) but unfortunately misses an important step in the process. Consider Zepeda v. NRC, 2024 MSPB 14 (Oct. 20, 2024). The appellant was a special agent for the Nuclear Regulatory Commission’s Office of Investigations, and her supervisor put her on a PIP for three of her critical elements:

  • Planning and preparation for assigned investigations;
  • Conduct of investigations/assists to staff; and
  • Preparation of reports of investigation and assists to staff closure memoranda.

Id. at 2.

At the conclusion of the PIP, the agency removed her for failing all three elements. The MSPB AJ, who presided over the appeal, found the agency’s performance standards were invalid. The AJ reversed the removal, and the Board agreed. Here’s why:

  1. The agency had a 5-level rating system and did not define the “minimal” level of performance, which is considered acceptable performance under the law. Jackson-Francis v. OGE, 103 M.S.P.R. 183, ¶¶ 6-7 (2006). The appellant’s performance plan “only defined fully successful performance for each critical element; it did not define minimally successful performance that would have allowed the appellant to avoid removal…” Zepeda at 5.
  2. The agency did not clarify the employee’s performance standards during the PIP. As the Board noted, “[a]n agency may cure otherwise fatal defects in the development and communication of performance standards by communicating sufficient information regarding performance requirements at the beginning of, and even during, the PIP.” at 6, citing Henderson v. NASA, 116 M.S.P.R. 96 (2011). Had the agency clearly defined what was expected for level 2 performance at this point, the action may well have been sustained. However, this leads us to:
  3. The agency’s attempt to define level 2 performance contained invalid backwards standards. This is a too-common mistake where agencies, in an attempt to clarify expectations, describe the performance expectation as work that doesn’t get done rather than the level of work that’s required.

For example, on one of the appellant’s performance standards, on the subcomponent for the quantity of work completed, the agency informed her that minimally successful performance would be met if she completed “a less than expected quantity,” which according to the Board meant the appellant would be successful “by producing nothing at all.” Zepeda at 7. In other words, backward standards are impossible to fail because of the way they are written. Therefore, a removal for failing such a standard cannot withstand appeal.

OPM has a helpful guide to identifying backwards standards, and includes the following to assist:

To help you determine whether you are writing a backward retention standard, ask:

  • Does the standard express the level of work the supervisor wants to see, or does it describe negative performance? (Example of backward standard: Requires assistance more than 50% of the time.)
  • If the employee did nothing, would he/she meet the standard, as written? (Example of the backward standard: Completes fewer than four products per year.)

The problems … that backward retention standards cause rarely surface until it’s too late. To avoid problems, it is worth taking the time when first developing the retention standards to ensure they are not … backward.

There’s much more in the case we’ll consider in future articles. If this is an area that causes concern, consider bringing FELTG to your agency for a workshop-based approach to writing legally sufficient performance standards. [email protected]

Related training:

The Good News: A Letter to Santa 2024

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By Ann Modlin, December 11, 2024

Dear Santa:

With a new administration taking over in January, changes are sure to happen. Change can be scary, but I’m an eternal optimist. As a result, I’ve decided to go big this year. Here’s what I’d like for Christmas:

1. An end to numerical redundancy.

There is absolutely no need to ever write out a number and put the numeral in parentheses. This is what I’m talking about – ten (10); forty (40); seventy-five (75). Please make it stop, Santa. The easy rule is that numbers are written out one through ten (or nine, depending on your style guide), and numerals are used for 11 and up.

2. A budget from Congress.

I’m pretty sure I ask for this every year. Despite what some people think, the Federal government does a lot of good things. It takes money to do those good things. Federal employees should not have to worry about funding every single year! Congress needs to pass a budget now!

3. Help supervisors and advisors understand the burdens of proof are low for disciplinary and performance actions.

To discipline an employee, the agency must show that, more likely than not, the employee engaged in misconduct and that the penalty was reasonable — just 51%.

To remove a poor performer, the agency must show that any reasonable person might (not “would”) agree that the employee performed at an unacceptable level — just +/- 40%.

Easy as pie! (Speaking of pie, let’s add an apple pie to this list.)

4. Simplification of probationary and trial periods.

The probationary or trial period is a magical timeframe during which agencies may terminate Federal employees for unacceptable performance or misconduct without the due process rights that attach after that period. It should be simple to know who is a probationary employee and who is not, but sadly, it can be very complicated. Perhaps the new Congress and Administration could go to work on simplifying the language about probationary and trial periods in the U.S. Code. And heck, why not just make an across-the-board two-year probationary period for all competitive service and excepted service employees? This would take away some of the confusion. (I told you I’m going big this year).

5. Simplification of the Federal EEO process.

Santa, please don’t laugh at this one. The process is overly complicated, and I’m not sure it really helps remedy illegal discrimination. And EEOC Administrative Judges are completely overloaded. How about a pilot program with one agency trying the EEO system used by the private sector. Here’s how it works:

  • The employee has 180 days to file a complaint with the EEOC.
  • The EEOC notifies the agency of the complaint within ten days of receiving the complaint.
  • The EEOC offers voluntary mediation.
  • The EEOC has 180 days to investigate the claims, and the agency may submit a written response to the complaint.
  • If the EEOC does not complete its investigation within 180 days, the employee has a right to sue in Federal district court.
  • If the EEOC completes the investigation within 180 days, the EEOC can decide to sue on behalf of the employee or dismiss the complaint and give the employee a notice of right to file suit in Federal district court within 90 days.

This process works for private-sector employers. Why not give it a shot for the Federal government?? (Yep – I’m going big!)

6. Limit collective bargaining agreements to 150 pages.

I sense you may be laughing at this one too. No one wants to read hundreds of pages in a collective bargaining agreement.

7. A horse.

I have asked for a pony for many years, and no luck so far. In the spirit of going big, I would like a horse.

Merry Christmas and Happy New Year, Santa! [email protected]

Related training:

How Long Has This Unapproved Leave Been Goin’ On?

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By Dan Gephart, December 11, 2024

Quick facts:

  • When disciplining for AWOL, you have to prove not only the alleged facts but also the charge elements.
  • AWOL of more than five days typically justifies termination.
  • Older cases reveal that, depending on some factors, even fewer than five days could justify termination.

Over the Thanksgiving break, I found myself glued to HBO’s “Yacht Rock: A DOCKumentary.” For the uninitiated, yacht rock is a smooth and melodic, California-based blend of jazz, rhythm and blues, and soft rock that dominated radio airwaves between the mid-70s and mid-80s. Think “Ride Like the Wind” by Christopher Cross, “Black Friday” by Steely Dan, “What a Fool Believes” by the Doobie Brothers, or, basically, any other song with the voice of Michael McDonald.

The documentary was fun to watch, but then I started hearing these wispy songs wherever I went. I couldn’t escape them. This morning, I got in the car, turned on the radio, and was hit with the should-be-long-forgotten classic “How Long Has This Been Going On” by Ace. That yacht rock earworm has burrowed way deep into my temporal lobe.

It’s a fitting song, after all, since I’m writing today about Absence Without Leave, a disciplinary charge more affectionately known as AWOL. How many hours of AWOL justifies termination? In general, the answer is usually AWOL of greater than five days

Example 1: Young v. USPS, 14 MSPR 549 (MSPB 1983). A USPS mail handler was removed for fraudulent use of sick leave requests and AWOL. The agency charged the employee with 19 instances of AWOL, totaling 122 hours. In the initial decision, the AJ found only six instances, totaling 40.75 hours were supported by preponderant evidence. However, the AJ noted that all of the AWOL took place in a short period of time between June 4 and July 19 of the same year.

Although the mail handler’s performance had been fully satisfactory for 17 years, it was outweighed by his more recent record of unreliable attendance and its impact on the agency’s ability to accomplish its mission. The removal was upheld.

Could removal ever be deemed reasonable for AWOL of a smaller number?

Absolutely. Let’s try 17 AWOL hours, the number you’ll find in Banks v. DLA, 29 MSPR 436 (MSPB 1985). After a long stretch of unauthorized absence, an employee stated, through a union representative, that he was being treated for depression and work inhibition. The agency initially sought to remove the employee for AWOL but then made an alternative offer: We’ll put the proposed removal into abeyance and place you in a one-year probationary period. However, the employee refused to sign the paperwork.

Subsequently, the employee was AWOL for a combined 17 hours over a one-week period, and it was solely those absences that formed the basis of the agency’s removal action.

The MSPB ruled the removal was “reasonable under the circumstances of this case.”  The Board pointed out the absences came shortly after the employee was warned about the previous absences.

How about eight hours or one day?

In Moxley v. VA, 36 MSPR 345 (MSPB 1988), a nursing assistant was placed on a sick leave restriction, requiring her to obtain medical certification to verify any use of sick leave. She requested sick leave for eight hours for later that month. The agency gave her five days to submit a medical certification of the need for sick leave. She didn’t, and the agency charged her AWOL when she failed to show up on the requested day.

The MSPB found the agency’s penalty of removal was reasonable due to several factors,  including the fact she had previously been suspended twice for similar AWOL offenses. [A quick note here: FELTG considers suspension an irrational option with an AWOL charge. Better to consider a reprimand in lieu of suspension.]

To recap: AWOL is a leave status – not automatically a disciplinary action. But AWOL is also a disciplinary charge. In general, removal is appropriate for AWOL of longer than five days. However, it may be appropriate for shorter stretches, such as 17 or eight hours, although it’ll depend on other factors. Whatever the length of absence, however, be sure to consider the following elements when disciplining for AWOL:

  • The employee was absent without authorization.
  • If leave was requested, denial was reasonable. [email protected]

Related training:

Mold Allergy Turns into Harassment That Spoils OWCP Decision

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By Frank Ferreri, December 11, 2024

Quick facts:

  • A VA technologist was allegedly bullied after requesting accommodations for a mold allergy.
  • The technologist filed an occupational disease claim based on an emotional condition.
  • ECAB sent the case back to OWCP to consider new evidence from an arbitration decision that found the technologist was a qualified individual with a disability.

Sometimes, one thing leads to another. And, sometimes, one incident of legal significance opens the window to one or more other claims.

For example, there’s S.W. and Department of Veterans Affairs, No. 22-0565 (Oct. 17, 2024) [PDF]. It started with medical technologist’s complaints over mold in the workplace and ended up in a workers’ compensation claim, with a stop in disability-based bullying along the way.

What happened?

The technologist alleged he sustained an allergic reaction with respiratory, neurologic, and visual symptoms due to exposure to mold at his work location dating back to 1990. About two months later, the technologist filed another occupational disease claim alleging he sustained an emotional condition due to:

  1. Harassment by coworkers; and
  2. Disciplinary actions by supervisors.

Specifically, the technologist alleged: 1) two coworkers swore at him during training; 2) he was subjected to a pattern of discrimination; 3) his supervisor subjected him to disparate treatment and hostility on the basis of disability related to the mold allergy; and 4) he was denied reasonable accommodations.

OWCP denied the technologist’s emotional condition claim, finding the evidence of record was insufficient to establish a compensable employment factor. OWCP twice denied the technologist’s request for modification.

Later, OWCP received a union grievance arbitration, which found the technologist was a qualified individual with a disability based on his mold allergy. The decision also noted the agency discriminated against the technologist by not providing reasonable accommodations.

Despite this evidence, OWCP denied another request for reconsideration from the technologist, prompting him to take the claim before ECAB to require OWCP to reopen the case.

What did ECAB say?

Under 20 CFR 10.606(b)(3), to require OWCP to reopen a case for merit review, a claimant must provide evidence that:

  1. Shows OWCP erroneously applied or interpreted a specific point of law;
  2. Advances a relevant legal argument not previously considered by OWCP; or
  3. Constitutes relevant and pertinent new evidence not previously considered by OWCP.

ECAB determined OWCP improperly denied the technologist’s request for reconsideration of the merits of claim. ECAB faulted OWCP for not taking into consideration the contents of the union arbitration decision, which ECAB found was “new and relevant evidence regarding the underlying merit issue of whether [the technologist had] established a compensable employment factor.”

According to ECAB, the grievance arbitration decision, which found the technologist was a qualified individual with a disability based on his mold allergy, met the criteria for a merit review under 20 CFR 10.606(b)(3) — the decision constituted relevant and pertinent new evidence not previously considered.

Thus, ECAB directed OWCP to take another look at the case with the new evidence in hand and issue a new decision.

It isn’t every day that allergies, harassment, disabilities, and workers’ compensation pile up on an agency’s plate. However, it’s a reminder that addressing allegations of disability-based bullying early can make for a smoother and more peaceful work environment.

And remember: Reasonable accommodation requests don’t live in a vacuum. How an agency responds to an employee’s request could mean the difference between following multiple laws properly or ending up with compliance headaches. [email protected]

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