Should Old Dismissals Be Forgot: EEOC Reverses More than A Third of Procedural Dismissals

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By Meghan Droste, December 15, 2020

Somehow, despite it still feeling like it’s just April or May, it’s that time of year again — time to look back on where we’ve been (at home) and what we’ve done (a lot of video calls). In that spirit, this month I’m highlighting an interesting statistic from the Commission’s look back at fiscal year 2019 and adding in some data of my own from recent months.

In its Fiscal Year 2019 Annual Performance Report, the Commission provides updates on its performance in several areas, including closing hearing requests and appeals that have been pending for a lengthy period of time, and the number of findings in favor of complainants and appellants. The Commission notes that it resolved more than 4,000 appeals in FY19, with 37 percent of the appeals resolved within 180 days of their receipt. Also, 762 of the appeals it resolved in FY19 were appeals of procedural dismissals of complaints, when an agency dismisses a complaint before engaging in an investigation. The Commission highlights that it reversed more than 34 percent of the procedural dismissals, remanding them back to agencies for continued processing.

This number stood out to me because it matches what I have observed in my own practice — that the Commission is moving quickly to address and reverse improper dismissals — and because it seems like such an easy fix for agencies. With more care, and possibly more training for EEO staff, agencies can avoid defending unnecessary appeals. But wait, this is “old” data, you might be thinking, from a prior fiscal year. Maybe this was a fluke or agencies have already improved. Well, I’m here to tell you that neither of those things appear to be the case.

I conducted a completely unscientific and not-guaranteed-to-be-statistically-significant review of some recent EEOC decisions and found that the same appears to be true this year. From October 1 through November 19, the Commission issued 204 decisions that contain the phrase “Agency dismissed.” I reviewed a sample of 50 of those cases and found 40 cases in which the Commission issued a substantive decision on the issue of a procedural dismissal. The most common reasons for the dismissals were untimeliness (29), failure to state a claim (20), and raising a claim that was raised in a prior complaint (10).  (Before you question my math, some agencies dismissed claims for multiple reasons in the same case.) The Commission reversed the dismissals in at least 30 percent of these categories, reversing 40 percent of the dismissals for claims raised in a prior complaint.

Hopefully, we’ll see a reversal of this trend in the new year, and you can avoid revisiting cases your agency has improperly dismissed. In order to do so, I recommend reviewing a few of the recent decisions for a refresher on what an agency needs to prove in order to prevail on an appeal of a procedural dismissal. [email protected]

[Editor’s note: If you’re looking for training that covers the gamut of EEO issues, and provides usable guidance for all practitioners, regardless of experience level, register for EEOC Law Week, which will be held virtually March 15-19, 2020.]

The Good News: A Letter to Santa

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By Ann Boehm, December 15, 2020

Dear Santa:

I think I have been very good this year, although 2020 needs to be on the naughty list. I hope you and Mrs. Claus are doing OK during the pandemic.

For Christmas this year, here are some Federal employment law things I’d like:

  1. A quorum at the Merit Systems Protection Board (MSPB). (Two members will do. Three would be really great.)
  2. A General Counsel at the Federal Labor Relations Authority (FLRA).
  3. Simplification of the Federal equal employment opportunity complaint process. (I know, I’ve been asking for this for a very long time. It’s kind of like the pony I keep asking for – I just know it will show up someday.)
  4. Labor-management partnerships that are actually balanced exchanges of ideas between unions and management.
  5. Performance improvement plans /demonstration periods/opportunities to demonstrate performance that stay 30 days long (because that’s always been long enough according to the MSPB).
  6. Recognition by the Federal unions that bad employees hurt the good ones, even bargaining unit members – and then (this is a big ask) union cooperation with management when management takes care of the bad ones through discipline or performance.
  7. Decisions from the MSPB (see number 1), the FLRA, and the Equal Employment Opportunity Commission that are based more on the law than on political biases.
  8. Some kind of amazing alternative dispute resolution process at the MSPB that will help them with their backlog of more than 3,000 appeals.
  9. Smooth transitions for Federal employees and agencies as people start returning to the workplace, whenever that happens.
  10. A pony. (I know it’s not really a Federal employment law thing, but I still really want one, and I have to keep trying.)

Thanks, Santa. Be safe out there on Christmas Eve! I can’t wait to see what you bring me! [email protected]

Don’t Throw Out the Baby With the Bath Water

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By Barbara Haga, December 15, 2020

This expression is bizarre – who would lose track of their baby in the bath? It is interesting, though.  I did a bit of research.  The phrase is German in origin and by the 1600s, it was commonly used and appeared in writings of astronomer Johannes Kepler. One site explained that the German version would actually be “you must empty-out the bathing-tub, but not the baby along with it.” The message is simple: One shouldn’t discard something valuable along with something undesirable. That’s my request to the new administration.

Dear President-Elect Biden and Transition Team

At FELTG, we train HR practitioners, attorneys, and managers on how to hold employees accountable. Whether the issue is performance, conduct, or attendance, we teach those responsible for effective human resource management how to navigate a complex system of procedures for taking action when Federal employees don’t live up to expected standards.

I realize that the prospects of anything in EO 13839, Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles, surviving the first few days of your new administration are slim, but I hope that at least there will be consideration of maintaining certain provisions that are important to supervisors faced with the task of managing Federal employees.  The fact that EO 13839 was issued with the two orders that set limitations on union matters may mean that worthy provisions relating to conduct and performance actions will be cancelled in the same fell swoop that will undo EO 13836 and 13837.  However, I hope you will agree that accountability in Federal service is a worthy goal – whether there is a Democrat or a Republican in the White House.

Unacceptable Performance

I want to specifically focus on dealing with unacceptable performance because it has been recognized for many years that failure to deal with poor performance is an issue in Federal agencies.  The Civil Service Reform Act (CSRA) of 1978, which passed during the Carter Administration (and during your tenure in the Senate), included the nine basic principles that set the guidelines for recruiting and retaining a high-quality workforce.

One of the nine principles addressed the need for dealing with poor performance. 5 USC 2301(b)(6)  states: “Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.”

The law directs managers to hold employees to standards of acceptable performance and to take action when they do not improve and set the procedures by which actions could be effected.

While those procedures gave managers what were supposed to be more effective tools to maintain accountability for acceptable performance, the process hasn’t been used as most expected. In 1995, the MSPB reported that of the 8,785 initial appeals decided by the Board’s Judges only 146, or 2 percent, were unacceptable performance actions. The relative percentage has never varied significantly. The MSPB’s 2019 annual report stated that there were 4,893 appeals and 113 (again 2 percent) were performance actions.

The Federal Employee Viewpoint Survey has shown that federal employees don’t see that employees in their organizations are held accountable to performance standards. Since the inception of the survey, there has been a question designed to elicit this information.

Question 23 on the survey is “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve.” In response to the first survey in 2002, only 25 percent of Federal employees answered that they strongly agreed or agreed that their units dealt with poor performance appropriately. That was the lowest positive score on the entire survey. Over the years, the numbers in the survey have increased somewhat.

The 2019 survey results showed that 33.7 percent answered that they agreed or strongly agreed with the statement.  It’s no longer the lowest positive score on the survey. It’s number two from the bottom. That’s not much improvement.

In years since, this issue has been recognized but no action taken to try to correct the situation.  The Bush Management Agenda for FY 02 addressed “real consequences for failure,” but there were no changes implemented at the time. The White House deficit reduction plan submitted in September 2011 included reform of personnel system, highlighting the need for addressing poor performance. The GEAR (Goals-Engagement-Accountability-Results) Report issued in 2011 under the auspices of the National Council on Federal Labor-Management Relations noted that there needed to be accountability at all levels, yet OPM did not make revisions. There were multiple calls for action, some from the last time you were part of the Administration, but no action ensued.

What Did EO 13839 Do?

The Order states: “Failure to address unacceptable performance and misconduct undermines morale, burdens good performers with subpar colleagues, and inhibits the ability of executive agencies … to accomplish their missions. This order advances the ability of supervisors in agencies to promote civil servant accountability consistent with merit system principles while simultaneously recognizing employees’ procedural rights and protections.” The performance-related provisions of EO 13839 directed agencies to take certain steps to make unacceptable performance actions easier, including:

  • Minimize burden on supervisors (Sec. 2.(a)). In some cases, HR advisors had added extra requirements beyond what the law and regulation required to performance actions, such as documenting pre-demonstration period performance.
  • Eliminate pre-demonstration period requirements (Sec. 4.(b)(ii)). In some agencies, there were extra steps built in. Supervisors had to give formal notice of an “assistance period” before initiating a performance action. In one agency, that totaled 150 days – a 30-day assistance period before a 120-day demonstration period. For a manager at that agency to take action was an investment of 150 days, even though many of those employees performed transactional work where the supervisor would have ample time to determine if the employee could perform acceptably or not in much less time.
  • Eliminate any requirement to use 432 procedures (Sec. 4.(b)(ii)) and use 752 (conduct) when appropriate (Sec. 2.(h)). An illustration comes from the VA. A pharmacist was making mistakes in filling prescriptions. In some cases, it was the wrong medicine and in others it was the wrong dosage. Any mistakes not caught could potentially kill one of our veterans. Yet, for some reason, the agency put that employee on a demonstration period. This action should have been handled under disciplinary procedures. The demonstration period was dangerous.
  • Limit demonstration periods to 30 days in most cases (Sec.2(a)/Sec.4.(c)). This was the most controversial performance-related provision of the Order. For most jobs, 30 days is enough to judge whether there is improvement. Demonstration periods are not limited to 30 days by the Order when the nature of the work demands something different, which is exactly what the regulations provide.  5 CFR 432.104 states “… the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee’s position.”

President-Elect Biden, I hope I’ve made a case to keep these tools in the hands of the managers who will be charged with carrying out the programs that you want to establish during your administration. Give them the things they need to manage effectively. Please don’t throw the baby out with the bath water!

Tips from the Other Side: Reassignments and Reasonable Accommodation

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By Meghan Droste, December 15, 2020

We’ve made it, readers. It’s finally the end of 2020 and that seems like as good a time as any to wrap up our ongoing look at reasonable accommodation issues in this space.  I’m sure we’ll touch on them again at some point in 2021, but for now let’s look at one more area in which I see agencies struggle when it comes to handling requests for accommodations: searching for reassignments.

As a complainant’s representative, I often get involved in reasonable accommodation issues for my clients before litigation.  Obviously the preference is to find a way to accommodate a client’s needs in the current position. Unfortunately, there are times when this isn’t possible.

At that point, we move to discussing a reassignment.  When this happens, I have found agencies often make one of two mistakes. The first is to take far too long in searching for a reassignment. I know, and explain to my clients, that these things don’t happen overnight.  But too often it seems that agencies move very slowly in searching for vacant positions, waiting months before offering a potential position.

As I have mentioned before, the answer to the question of how long is too long to provide an accommodation is very fact-specific, so if your search starts to drag on, you should be sure you have clear documentation of all of the steps you have taken to locate a position.

The other common mistake is that agencies improperly limit the search for a position. I have seen agencies limit the search to only positions at the same grade level, forgetting that if none are available, the agency must search for a position at a lower grade. I have also seen agencies only search for positions in a specific geographic area. As the Commission emphasized in a recent decision, an agency’s obligation “to offer reassignment is not limited to vacancies within a particular department, facility, or geographical area.”  See Lisa C. v. U.S. Postal Serv., EEOC App. No. 2019005689 (Nov. 16, 2020). This means that “absent undue hardship, the agency must conduct an agency-wide search for vacant, funded positions that the employee can perform with or without reasonable accommodation.” See id.  While it may make sense to start the search in the location in which the employee already works, that should not be the only search or the end of the search.

Finally, if an employee identifies a potential position for reassignment and the agency rejects it, be sure you can articulate a reason why. In my own work, I have seen agencies outright reject a potential option but give no reason why.  In the Lisa C. case, the complainant identified a position at another facility and it appears the agency made no effort to consider it. As a result, the Commission found the agency failed to accommodate the complainant.

Good luck out there and happy new year! [email protected]

Have Discipline or Performance Problems? Take the Right Forking Path

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By Dan Gephart, December 15, 2020

Back in pre-GPS days, my older brother and his wife were driving to a holiday celebration at her family’s house in a small backwoods New Jersey town. They were still many miles away from their destination when they hit a fork in the road. My brother turned to his wife and asked: Which way do we go?

She replied: It doesn’t matter.

My brother told me this story a couple of years ago. I had just moved to the Garden State and I was struggling to find some semblance of reasoning to the left-turn-denying, circle-embracing, ever-winding road system. His story perfectly encapsulated driving in New Jersey, where two roads going in seemingly opposite directions will sometimes lead to the same place.

A couple quick things about my brother. He’s an accountant. Everything comes down to cold hard numbers. Also, he’s a bit of a geek. That’s not an insult; he fully owns and embraces his nerdiness. Every purchasing decision he makes, no matter how minor, is based on extensive research, usually tracked on a complicated multi-column spreadsheet. So “it doesn’t matter which road we take” wasn’t going to work for him.

That December morning, he went right at that fork. He tracked the miles, counted the traffic lights, factored in the speed limits, and noted the potholes. Next time he made the trek, he turned left at the fork and made the same calculations. From then on, he got to his destination via the shortest, least-complicated route.

When it comes to supervising federal employees, all roads are forked. When conduct and performance challenges rise, supervisors are faced with a hard decision about which path to take. Unfortunately, they often take the one that seems less difficult, at least at the time. But the easy path is never easy.  You may eventually get to the same place, but it’s going to take longer and it could be quite painful for you and your agency.

Here’s a story we often hear, in one variation or another: An employee’s misconduct seems minor or simply annoying at first, so the supervisor ignores it. After a few more instances, the supervisor tells the employee: This has to stop. It doesn’t, and now the behavior is impacting the rest of the staff. The supervisor issues a Warning Letter. Instead of correcting behavior, the employee ratchets up the misconduct a few notches. It’s months later and the supervisor just wants to be rid of this employee.=

If you’re keeping score at home (and you’ve been to FELTG training), you’ll note that this supervisor has taken zero disciplinary actions so far. But what about when she admonished the employee, you ask? That’s not discipline. And neither is the Warning Letter. Letters of warning, caution, counseling, and requirement are what FELTG calls “lesser letters.” These lesser letters are not acts of discipline. But you know what they can be? Grievable. So by taking that “easy path,” this supervisor has basically just driven in circles – and put herself and her agency at risk. If you want to write a letter, start with a Letter of Reprimand. Now that is a disciplinary action. Read Ann Boehm’s September Good News column for more on how this action can save you time and money.

If back at the original fork in the road, the supervisor had taken a disciplinary action, say the aforementioned Letter of Reprimand, then she would be in a much better place now and further along to her destination.

FELTG is like my nerdy older brother. Instead of tracking miles and creating spreadsheets, we’re reading cases, studying the law, and reviewing regulations – and then sharing the strategy with you. FELTG’s Developing & Defending Discipline: Holding Federal Employees Accountable and UnCivil Servant: Holding Employees Accountable for Performance and Conduct courses give you the latest GPS coordinates to take necessary disciplinary or performance action in the most efficient way with the fewest potholes.

If you care about accountability, you can bring either of these courses to your agency. Just email me, and we’ll get your supervisors on the right path. Or you can register for our upcoming UnCivil Servant open enrollment virtual training, which takes place February 10-11 from 12:30 – 4 pm eastern. [email protected]

How Much Information Does an Employee Have a Right to at the Proposal Stage?

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By Deb Hopkins and William Wiley, December 15, 2020

Here’s an email that recently came across the FELTG desk:

Dear FELTG,

Our agency has encountered an issue we haven’t seen, and were wondering if you might have some insight.

Typical for my agency’s chapter 43 removals is that the employee objects to not having access to their work documents, work laptop and programs, etc. (because they are put on admin/notice leave simultaneous with the issuance of the proposal) and thus isn’t able to offer a meaningful reply. We wonder if this is a common issue, and if perhaps there is an easy remedy that we’re overlooking.

Our proposals for chapter 43 removals include specific descriptions of each performance deficiency, with identifiers to specific instances (such as case numbers or project names and dates), but do not include or attach primary documents like screenshots or work files; the materials relied upon (outside of the proposal’s detailed description of the unacceptable performance) are usually the supervisor’s letter from the end of the opportunity period notifying the employee of the unacceptable performance, and if the timing lines up, the performance appraisal in which the supervisor rates the employee unacceptable.

So if an employee wanted to base their defense on individual case files, they would not have access to them through the materials relied upon; case files/documents/screengrabs aren’t provided with the proposal. We can’t anticipate every file an employee would want, so it’s hard to handle this prospectively, but options that have occurred to us are to (1) acknowledge in the decision that the employee objected to not having access, but did not actually identify or request any documents/files that would support a defense; or (2) when an employee objects to lack of access, the deciding official can ask the employee to identify what documents they need, and we can provide them and incorporate them into the materials relied upon. Option 1 may be risky (what if an administrative judge construes their objection to be a request that we failed to respond to?), but option 2 seems like it could delay the process and blow by mandated timelines.

What do you think? Is there a simple solution (or reassuring case) we’re missing, or a risk we’re misevaluating?

And here’s the FELTG response.

Well, we can’t give you specific advice on your situation, but we can speak to the principle in general. There’s a case we cover in MSPB Law Week (next offered virtually March 29 – April 2), that involves a misconduct removal but covers the same principle of access to documents during the notice period. In the event that an agency refuses to voluntarily make pertinent documents reasonably available prior to a Board proceeding, the Board’s rules provide for the issuance of orders compelling discovery by interrogatory or deposition, and for the issuance of subpoenas. See Kinsey v. USPS, 12 MSPR 503 (1982). This language “prior to a Board proceeding” assumes there is a Board appeal, which, of course, is not the case during the notice period.

The agency has no obligation, until the discovery phase, to produce any materials it did not directly rely upon in making the proposal. As long as the employee is given the material relied upon (and in a 432 action that’s entirely what happened during the performance demonstration period, PIP, or whatever your agency calls it now), the agency has fulfilled its obligation.

In another case we talk about during MSPB Law Week, the agency referenced shortcomings in medical care the employee provided to patients, but did not provide the employee the specific deficiencies or the records themselves that contained a description of the deficiencies. In reversing that removal, here’s what the Board said:

During the processing of the appeal, the appellant continued to express her confusion over the nature of the charge and attempted, without success, to  discover  the specific reason for her removal. For example, in “Appellant’s  Motion  to  Compel Production,” the appellant’s attorney stated that the appellant was “charged with failure to maintain her clinical privileges, which, so far as she can determine, calls into question the quality of care she has given to inmates for the undetermined period of time.”

In  “Appellant’s  Prehearing  Submissions,”  the  appellant’s  attorney  asserted  that       “there  is   complete lack of constitutional due  process” because the appellant “never knew prior to the time she was fired, nor does she know now, what acts of omissions on her part are the reasons for her termination nor what standard she fell below.” Alexander v. DoJ, DE–0752-97-0313-I-1 (1998).

The principle involved in situations like these is as old as the Constitution: “Fundamental due process requires that notice of charges against an employee be sufficiently detailed to provide a meaningful opportunity to be heard. In analyzing a claim of denial of due process, the Board will examine, among other things, whether the lack of specificity in the notice affected the appellant detrimentally or caused her any surprise during the hearing.” Mason v. Navy, 70 MSPR 584, 586-87 (1996). In your case, if the proposal said something like: “In case XYZ, you failed to attach an appendix,” then, in our opinion, that would satisfy due process. However, if it says something like: “In case XYZ, you did not conform with our SOP,” then that would not satisfy due process.

A basic way to look at which documents have to be provided is to ask the proposing official what he personally looked at in drafting the proposal. Did he look at a screen shot? If so, then the safest approach would be to include the screen shot along with the proposal. If he did not, then there’s no right for the employee to have access at this stage. The good news is that the employee is not entitled at the proposal/response stage to a fishing expedition to look for exculpatory documents or other evidence. That’s what he gets during discovery. [email protected]

Top 10 FELTG Newsletter Stories of 2020

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By Dan Gephart, December 7, 2020

Our last newsletter of the year will be published next week. So barring any major late-breaking news, this is the final FELTG Flash of 2020. As we’ve done the last couple of years (2019, 2018), we’d like to take this opportunity to look back at our most popular newsletter stories (based on the number of reads and forwards) over the past year.

I know what you’re thinking: “A look back? At 2020?”

Well, yes. While many of us quarantined in our homes, federal employment law challenges continued to run rampant. As always, FELTG was here to help guide you.

This year’s Top 10 stories reveal a wide range of issues related to performance, conduct, telework, sexual harassment and, in a few cases, how those situations were impacted by COVID-19.

1 – He Claimed He Teleworked for 2 Months, but His Laptop Charger Was at the Office (June)

2 – Why a Supervisor Should Never Give a Summary Performance Rating of Unacceptable (January)

3 – Failure to Follow Instructions: A Charge That Seems Particularly Fit for 2020 (May)

4 – What Dave Wants Dave Gets: Sexual Harassment is Misconduct (September)

5 – To Err is Human — and Maybe Also a Reason to Change a Personnel Record (May)

6 – Is There a Legal Path to Fire Dr. Fauci? (July)

7 – The Great Debate: Douglas in the Proposal or Douglas in the Decision? (January)

8 – Ripped From the Headlines: A Case for Today’s World (August)

9 – Precedential Fed Circuit Decision: Which Expert Determines if Employee is Unfit (October)

10 – How Long is Too Long for COVID-related LWOP? (November)

Twelve months from now, we’ll once again share our top 10 stories. Let’s hope that we will be looking back at a much better year. [email protected]

Good News: With This FLRA, It’s Good to be an Agency, Part Deux

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By Ann Boehm, November 30, 2020

A few weeks ago, I told you about the three FLRA decisions that are definitely on the pro-agency side of the bargaining spectrum: U.S. Department of Education and U.S. Department of Agriculture, 71 FLRA 968 (Sept. 30, 2020); U.S. Office of Personnel Management, 71 FLRA 977 (Sept. 30, 2020); and U.S. Department of Agriculture, Office of the General Counsel, 71 FLRA 986 (Sept. 30, 2020). I focused that article on the first case and promised to provide in-depth coverage of the other two in a subsequent article. So here goes:

U.S. Office of Personnel Management, 71 FLRA 977

This case makes zipper clauses a mandatory subject of bargaining.

Let’s start with what may seem like a basic question: What is a zipper clause? A zipper clause is a provision in a collective bargaining agreement (CBA) that forecloses the union’s right to bargain during the term of the agreement on matters not contained in the CBA.

Agencies and unions have always had the ability to negotiate over inclusion of zipper clauses in the CBA, but until this decision was issued, zipper clauses were not mandatory subjects of bargaining. With the FLRA now stating that they are mandatory subjects of bargaining, the parties may bargain zipper clauses to impasse.

In practice, this could take away union rights to initiate midterm bargaining. It also could simply result in more clever negotiating tactics by the unions and agencies. Member DuBester suggested as much with this line from his dissent: “In reality, unions wishing to preserve their ability to initiate midterm bargaining will now be required to trade something of value at the bargaining table in hopes of securing what was, until today, a statutory right.” Id. at 985.

You heard it here agencies (thanks to Member DuBester). Be clever in negotiating. Zipper clauses are very much on the table.

U.S. Department of Agriculture, Office of the General Counsel, 71 FLRA 986

This case allows for Agency head review of expiring, existing collective bargaining agreements when there is a request for renegotiation pending.

Two key statutory provisions apply in the FLRA’s analysis of this matter — 5 U.S.C.§7114(c)(1), which provides that CBAs are subject to agency head review, and 5 U.S.C.§ 7116(a)(7), which provides that it is an unfair labor practice for an agency to enforce a rule or regulation in conflict with an existing CBA if the CBA was in effect before the date the rule or regulation was prescribed.

Since 1993, the FLRA has held that for CBAs that automatically renew upon expiration, the Agency head may review the agreement the day after the expiration of the CBA window for requesting renegotiation. Kansas Army Nat’l Guard, 47 FLRA 937 (1993). This review ensures that the renewed agreement complies with any rules or regulations that changed during the previous CBA term.

What the Department of Agriculture asked the FLRA to decide in this case is whether there can be Agency head review of an existing CBA when a party requests to renegotiate an expiring CBA with a continuance provision. It’s a pretty discrete issue, eh?

Here’s what the FLRA decided. If a continuance provision extends the CBA past the original expiration date, “the first day of the extension period that is beyond the original expiration date” is the beginning of a new term. Id. at 989. So, on the first day of the extension, all rules and regulations that became effective during the previous term apply, and the Agency head has 30 days to review.

Now once again, Member DuBester was not pleased. He believes this decision is contrary to 5 U.S.C. § 7116(a)(7). According to his interpretation of the matter, a continuance provision is an agreement that the existing CBA remains in full force and effect until a new CBA is approved. Id. at 990. That would foreclose Agency head review. He even goes so far as to say the FLRA’s explanation of how it determined that the extended agreement is in “a meaningful sense” not the same one in effect “is—to put it mildly—novel.” Shazam! Id. at 991.

Well, there you have it. As I said in my previous article, none of these three decisions eliminate the bargaining rights of unions. But they do tilt in the agencies’ favor. Count on all three being appealed by the unions. Stay tuned. And for now, have fun agencies. [email protected]

[Editor’s note: Want to learn more about these and other recent noteworthy FLRA decisions, such as the recent decision that dealt a “major blow” to the 2017 VA Accountability and Whistleblower Protection Act, and their impact on your agency? Register now for What’s Going on at the FLRA? Case Law Updates and More on December 8 from 1 – 2 pm ET.]

And Now Another Word With … Bob Lavigna

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By Dan Gephart, November 23, 2020

On the heels of positive vaccine news, talk about the eventual return to workplace normalcy has picked up. But that normalcy does not necessarily mean a sudden end to remote working, especially if government workers have a say.

Eighty-five percent of state and local government employees who did not work at home before COVID-19 want to continue working remotely permanently, at least part of the time, according to a recent survey by CPS HR Consulting. This fascinating report Leading Through a Pandemic: The Impact of COVID-19 on the Public-Sector Workforce, like most of the organization’s work, was focused on state and local governments. But it’s not a stretch to think that many federal employees feel the same as their more local counterparts.

Agency leaders are embracing telework, too. Several told Congress last week they also hope to make telework more permanent in the post-pandemic world. The CPS HR Consulting survey determined that “government should also view the demand for remote work as an opportunity to expand the search for talent (i.e., recruiting may no longer be limited by geography)” and that “leaders need to systematically ask employees for feedback to identify and meet the needs of all employees.” CPS HR Consulting suggests that government organizations:

  • Equip managers and supervisors with the skills to manage results and outcomes (and not just time and attendance)
  • Redesign jobs to adapt them to remote work
  • Acknowledge and communicate that employees working from home must have the flexibility to balance work and personal lives
  • Provide the tools and resources remote workers need, especially technology

“Effective leadership, flexible work environments and effective use of technology can drive employee productivity, well-being and engagement and, therefore, organizational performance – regardless of where employees are working.”

This month, we continue our conversation with Bob Lavigna, director of CPS HR’s Institute for Public Sector Employee Engagement. Lavigna (pictured above) is the former vice president of research for the Partnership for Public Service and author of Engaging Government Employees: Motivate and Inspire Your People to Achieve Superior Performance.

DG: How do you “equip managers and supervisors with the skills to manage results and outcomes (and not just time and attendance)?”

BL: When employees are working remotely, it’s no longer possible for managers/supervisors to know if employees are working productively simply by seeing them at their desks or work sites. Managing in this new and different environment is often difficult. According to one government HR executive, managing remote employees means ditching the, “If I can’t see you, you’re not working” mentality.

Instead, leaders need to measure and manage goals, results and outcomes, not just time and attendance. This often-difficult transition requires new performance metrics, tools, systems, and expectations. And, where possible, even linking financial rewards to results.

To help managers and supervisors adapt, organizations are providing training, tools, resources and tips on leading a remote workforce. Many of these programs are online (including our own CPS HR Consulting training curriculum). For example, one city has assembled a manager’s toolkit that includes tips, articles, webinars, etc. on managing a remote workforce. Organizations are also setting the expectation that managers and supervisors need to be more flexible. According to one government executive, “We’ve had to drastically change,” putting aside the usual focus on counting workers’ hours and days. “People who have kids need to take an hour off to put someone down for a nap or to make a peanut butter and jelly sandwich.”

Government may also need to change how leaders are identified and selected. Organizations need to select managers and supervisors who can manage effectively in this new environment, instead of advancing employees because they have good technical skills or have long tenures.

DG: The report revealed that employees were “anxious” and “stressed” and unsettled, but that was early on in the crisis. Do you think that the answers would be different now? 

BL: Good question. There is some evidence (e.g., from Gallup) that engagement levels were on the rise after declining at the beginning of the COVID-19 pandemic. However, the recent resurgence of the coronavirus is likely to keep everyone unsettled and on edge. I don’t think anxiety and stress will decline until we have an effective vaccine and see some light at the end of this tunnel.

DG: There’s a general assumption among many remote workers that when you work at home, you work more hours. While 34 percent of remote working respondents said they were working more, the majority are not. Is that general assumption just wrong?

BL: I think that 34 percent is a substantial number. But I question the assumption that, during COVID-19, working remotely automatically translates into working more. Given the other factors that affect the ability to work remotely, like the availability of technology and personal responsibilities such as dealing with kids and spouses at home, I don’t think it’s possible yet to evaluate whether the new working environment has resulted in increased workloads. Let’s see what happens when things get back to “normal.” What has clearly changed, however, is when work is getting done.Employees operating remotely are working when they can, while also balancing their personal responsibilities. Therefore, the traditional workday has been stretched.

And we believe this is a permanent change. As the research conducted by the Institute and others has shown, employees working remotely for the first time want to continue this arrangement permanently, at least part-time. In other words, the world of work has dramatically changed. Organizations, including in government, need to adapt to – and not resist – this evolution. Otherwise, government will not be able to attract and retain top talent.

DG: Some employees view attempts to engage them skeptically. How do you get past that?

BL: In our work conducting engagement surveys across the nation, we’ve encountered this skepticism. I remember one employee who stated during an employee engagement kickoff meeting that, in his opinion, the organization’s focus on engagement was merely a cynical attempt to squeeze more work out of employees. My answer was that efforts to improve engagement – done right – should be a win-win. Employees feel better about their work and their organization, and, therefore, are motivated to deliver for the people they serve.

But what does “done right” mean? It means surveying employees to understand empirically what the workforce issues are, preserving the confidentiality of employees’ responses, sharing survey results, making a long-term commitment to improving engagement and – most important – taking action on survey results. Organizations that survey and then fail to act on the results will see a decline in engagement – and an increase in skepticism. And they will deserve these outcomes.

DG: What role does onboarding play in the eventual success or failure of employee engagement efforts? And, if it does have an impact, how do you make sure that remote onboarding lays the groundwork for successful employee engagement?

BL: You only get one chance to make a first impression. Research, including by the Partnership for Public Service, has shown that effectively onboarding new employees results in a higher level of engagement, lower turnover and faster time to full productivity.

But it’s important to define what onboarding is – an integrated set of activities during the new employee’s entire first year that provides the information, support and resources the employee needs to succeed.

Of course, like most activities with a remote workforce, onboarding becomes more complicated. But the fundamentals are the same – provide tools and resources, connect with the supervisor, assign work, set expectations, deliver training and provide feedback. For remote workers, these steps may need to be done virtually. I have worked remotely from my home in Madison, WI for two organizations (way before COVID). In both cases, I was onboarded pretty seamlessly, including setting up my laptop, printer, etc. It can be done, even with a remote workforce.

[Editor’s note: Bring FELTG’s popular webinar training Manging a Mobile Workforce: Tools for Accountability to your agency. For more information, contact Dan Gephart at [email protected]]

How Long is Too Long for COVID-Related LWOP?

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By Deborah Hopkins, November 17, 2020

Nearly every day, we at FELTG get questions about COVID-related federal workplace issues. Here’s a recent one worth sharing with the rest of the FELTG Nation.

Dear FELTG:

I was wondering if there was any guidance on how long an agency must allow an employee to remain on Leave Without Pay status if the employee is high risk. Hypothetically, we have employees working in the stores so telework is not an option. If an employee has been given a medical note stating they should avoid exposure or remain at home, and has now been on LWOP for several months, where’s the limit? At this time, there is no end in sight with regards to the pandemic, so no return to work in sight either.

And our FELTG response:

In some ways this is a hypothetical “who really knows” situation because we don’t have any precedent for this pandemic. OPM has encouraged flexibility with telework and scheduling, but obviously someone who works in a store needs to be onsite to do that. Here are a few general thoughts related to your hypothetical.

The employee’s LWOP may be a reasonable accommodation, since the agency is granting LWOP because the employee’s condition prevents him or her from coming to work. Of course, whether it’s an RA depends on why the employee is high risk: Does the employee have asthma or an autoimmune disorder, for example (disabilities)? Or is the employee over 65 and high-risk according to CDC guidance (not a disability)?

Assuming this is an RA, the proper analysis would be to ask at what point the LWOP becomes an undue hardship for the agency, because EEOC’s stance is that attendance is not an essential function of a federal job. And if it’s not yet documented as an RA, that would be an important thing to do, to show the agency fulfilled its obligation to accommodate the employee.

The next thing to do, after the LWOP was determined to be an undue hardship, would be to consider reassignment to a job the employee could perform from home.

If all that failed, this might be a case where the agency could remove the employee for medical inability to perform, depending on what the medical documentation says, and whether a reassignment was available.

If the employee is high-risk simply because of age, or because they live with someone who is high-risk, then none of the RA steps above will apply. In that case, the agency would need to issue a return to work order (whenever LWOP goes beyond a reasonable time), and then could remove the employee if they refused to report. As far as how much LWOP is too much, we really can’t answer that – some agencies allow employees to use it for years. Others are more strict. It really depends on your agency’s staffing situation.

Down the road, this might become an excessive absence removal, especially if the LWOP goes on for over a year, and the return to work is not foreseeable (be sure to follow the Cook analysis if you go this route, and look at cases to help determine how much leave is “excessive” under the law).

All that said, this employee could be reassigned as well, not as part of RA but because the agency has a business need to fill a job elsewhere and doesn’t want to fire the employee.

This is a tough situation. COVID is out of everyone’s control, and agencies want to protect high-risk employees. However, agencies also have to get the work done. Lots to consider here. Good luck! [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.