Threats of Violence: Assessing Risk and Taking Action

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By Dan Gephart, November 17, 2020

While the nation is grappling with a pandemic, the government’s most well-known scientist has been besieged with death threats. And as more than 150 million people exercised their right to vote earlier this month, state and local officials, as well as volunteer poll workers, also faced violent threats as they attempted to count the ballots.

This dangerous risk to our nation’s civil servants is not new.

A September 2019 GAO report and a subsequent article by Government Executive laid out the stark reality of the dangers faced by federal employees at one particular agency — the Bureau of Land Management. The report included numerous examples of violence against BLM employees, including an employee who was stabbed outside a federal building, and another who received hundreds of aggressive calls, including death threats, after someone posted his phone number on Twitter.

So you bet I listened closely last week as FELTG Instructor Shana Palmieri, LCSW, delivered the third and final of the webinars in her Behavioral Health series — Threats of Violence in the Federal Workplace: Assessing Risk and Taking Action. (The previous webinars were Understanding and Managing Federal Employees with Behavioral Health Issues and Suicidal Employees in the Federal Workplace: Your Actions Can Save a Life.)

Violence can come from a current or former employee, a customer/patient, a domestic partner, a personal conflict that spills into the workplace, or someone not known to the agency. Regardless of where the threat is coming from, it’s awfully hard to predict. More than 3 percent of the general US population commits one or more violent acts each year.

What are the factors that lead to violence? A lack of education, decreased social stability, and high unemployment are factors.

What’s not a factor? Mental illness. The majority of patients with stable mental illness do NOT present an increased risk for violence. In fact, researchers estimate that only 4 percent of violence in the United States can be attributed to mental illness.

“The potential of violence lies within all of us,” Palmieri said during the webinar. “It’s something anybody can be driven to as a human, not just a result of mental health (issues).”

During the webinar, Shana offered numerous suggestions for risk assessment and response management plans, with a focus on “intervention early on and using practices that are evidence-based to mitigate or de-escalate the potential for violence to occur.”

If you missed the webinar, and you’d like to book Palmieri, who handled the psychiatric aftermath of the Navy Yard shooting in 2013, to come to your agency (virtually or in-person), email me at [email protected].

In the meantime, you can share with your staff these techniques for de-escalating aggressive and potentially violent behavior, which were discussed more in-depth during the training:

  • Respect personal space – do not move towards employee. Don’t lean into the employee. Keep your distance.
  • Be aware of your body position. Stand at an angle. “You don’t want to come in with a defensive stance. If I’m standing face-to-face, staring them right in the eyes that’s a defensive stance,” she said.
  • Use a calm voice. If the aggressor gets loud, speak quietly. People tend to mirror those they are engaging with.
  • Be empathetic and validate the person’s feelings. You don’t have to agree with the content of what the individual is saying, but you can let them know you understand that they’re feeling angry. “Stay calm,” Palmieri said. “Be present.”
  • Avoid all power struggles. People who are angry will try to bring you into the fight. Don’t let them trigger you. “It’s very important to avoid that power struggle,” Palmieri said. “It will only escalate the dynamic. It’s not the time to fight the battle.”

[email protected]

Another Look at Lee v. FAA: Getting a Disciplinary Action Right

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By Barbara Haga, November 17, 2020

In a prior column, I addressed the case of Lee v. Federal Aviation Administration, No. 2019-1790 (Fed. Cir. July 29, 2020) in regard to failure to truthfully respond during an investigation and potential (or lack of it) for rehabilitation.

To recap: Lee was a civil engineer who was conducting extensive personal business on duty. The agency initially proposed removal but lowered the penalty to a 45-day suspension. The arbitration resulted in the penalty being reduced to 30 days. The Federal Circuit upheld the 30-day suspension. This month, I delve into the details of how the action was handled and also take a look at the impact of union contract language on management’s ability to discipline.

The investigation

The initial inquiry began apparently after an e-mail containing inappropriate pictures was sent to Lee by a coworker. That resulted in a request to obtain Internet and email history from both the sender’s and Lee’s work computers.  There is nothing in the Federal Circuit decision that indicates that the supervisor, Mr. Smith, knew about her extensive use of the computer and Internet for personal business at that point. When the report was submitted it revealed the following:

The forensic report of Ms. Lee’s FAA internet history spanned more than 1,900 pages and revealed that between January and April 2017, Ms. Lee conducted 33,968 online transactions. Mr. Smith saw concerning levels of activity on eBay, Amazon, and Etsy, among other non-work-related sites. He was particularly concerned that, both during and after work hours, Ms. Lee was frequently visiting Etsy where, as he discovered, she sold handmade crafts through her account, “BoosTinyBits.”

Analysis of the degree of misuse

When dealing with computer misuse, it is important to get the details straight. In her response to the action, Lee noted that the initial report did not account for time that windows were left open for extensive periods of time when there was no activity on that page. Because Lee raised this, Smith requested a supplemental investigation. Here’s what happened:

The supplemental report excluded obviously work-related transactions and removed from the time calculations any periods where the time between active clicks on a certain webpage was more than five minutes. Still, 22,829 internet transactions remained. Based on this narrowed data, the supplemental report calculated that Ms. Lee had an average of 1 hour and 44 minutes per day of not clearly work-related internet use over the 45 workdays on which her usage was tracked.

The first sentence is troublesome. It took a supplemental report to exclude the obviously work-related transactions? If the report was used in the proposal to substantiate misuse, it needed to clearly identify what was misuse. Perhaps there was an issue because the original purpose of the analysis was to determine if there was something inappropriate going on between Lee and her coworker and the report wasn’t geared to deal with misuse related to conducting personal business, but the advisor who was working this case should have been looking at this in preparing the proposal. Dropping the number of transactions by 10,000 or roughly 1/3 after her reply is huge.

The issue about windows being left open should also have been addressed before the proposal was issued. I have been known to leave windows open for full days!  So, any data about how long I was actually doing something on that site would be misleading without checking the activity on the page. It appears that the IT staff was able to provide this information since it is included and accounted for in the supplemental report.

The Federal Circuit decision states that original removal was reduced to a 45-day suspension because of “Lee’s lack of prior formal discipline, her satisfactory work performance, her five years of federal service, and her statement that she had stopped Etsy transactions at work, stopped accessing the Etsy website, and ceased ‘all nonwork’ related usage of Amazon and eBay.’”

I can’t help but think that another factor that led to the mitigation was that the proposal cited a significantly greater amount of misuse than could be substantiated.

Conducting the investigation

One of the charges against Lee was lack of candor. To prove lack of candor, you have to be able to show that  the person failed to disclose something that, under the circumstances, should have been disclosed to make the statement accurate and complete. Lee received written notice of the potential charges and was scheduled for the interview in advance.

The decision states: “At several points, Ms. Lee asked the interviewer to clarify his questions, but he told her that he could not depart from the questions as written.” What kind of questioning is that? Was a robot doing the interview?

Lee argued in her appeal of the arbitrator’s decision that she didn’t knowingly provide incomplete answers to the interviewer because she did not understand the questions. The court described the questioning as “inartful,” but clear enough to warrant more than the one-word answers Lee gave. The FAA survived this challenge, but agencies should be able to do better. Trained investigators should be able to rephrase and elaborate further on the point of the question.

Contract Language

Participants in my Advanced Employee Relations course have heard me address this. [Editor’s note: Register now for the next Advance Employee Relations training December 1-3.]

Union contract provisions that may seem routine can come back and bite you. This case is a perfect example. The arbitrator upheld every one of the agency’s charges – misuse of government property, misuse of government time, and lack of candor. However, the arbitrator mitigated the penalty to a 30-day suspension. The union agreement required that disciplinary action be prompt.  The arbitrator said that waiting five months after the investigatory interview to initiate the action was not prompt, so a lower penalty was warranted. The Federal Circuit did not disturb that finding.

There is no information in the decision about why there was a delay.  Did it take several months to get the supplemental investigation? Was the manager out for several months during the decision phase of the action? Whatever the reason, having your legitimate 45-day suspension reduced to 30 is a high price to pay for not being prompt.

Compound the Pain: When EEOC Orders Agencies to Pay Interest on Damages

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By Meghan Droste, November 17, 2020

Do you remember March 2020? I think I do, although sometimes when I think back to things I did in early March—including traveling across state lines and attending large events!—it feels like years ago, rather than just eight months or so.  Well, one thing I did in March was share an EEOC decision in which the Commission had some serious concerns about the agency’s ongoing and repeated failure to comply with the Commission’s orders.

In Alma F. v. Department of the Army, EEOC Pet. No. 2019004337 (Feb. 4, 2020), the Commission described how the agency had failed to provide evidence of compliance in 19 other cases, all with petitions for enforcement from 2019.  (You can read more here: You and What Army?)  As I noted in my article, the Commission doesn’t have an army to back it up when it orders agencies to take certain actions.  Unlike in cases in which agencies fail to comply with EEOC regulations about processing complaints or with orders from administrative judges, the Commission seems reluctant to issue sanctions, such as default judgment, when agencies fail to comply with orders on appeals.

So what can and does the Commission do?  Well, as it warned in Alma F., it can issue a show cause order to the head of an agency or certify the issue to the Office of Special Counsel.  (By the way, this warning doesn’t seem to have made much of an impact.  In a September 2020 decision, the Commission noted the same issue was ongoing in more than 20 cases.  See Calvin D. v. Dep’t of the Army, EEOC Pet. No. 2019004326 (Sept. 30, 2020).)  The Commission can also order an agency to pay interest on damages to address an agency’s failure to meet deadlines.

That is exactly what happened in Lyda F. v. Dep’t of Homeland Sec., EEOC App. No. 2020002790 (Sept. 16, 2020). In 2017, the Commission reversed the Agency’s FAD and remanded the complaint for correction and amendment to the accepted claims, and a supplemental investigation. The Commission ordered the agency to complete the supplemental investigation within 120 days and provide a copy of the ROI to the complainant no more than 30 days later.

If the complainant requested another FAD, the Commission ordered the agency to issue it within 60 days of the request.  The complainant requested a FAD on the supplemental ROI on July 11, 2018.  The agency did not issue the FAD—in which it found liability for both harassment and retaliation—until July 10, 2020, two years after the complainant requested it. The Commission found that interest on any compensatory damages award was the appropriate way to address the agency’s obvious failure to meet its deadline.  It did not label this as a sanction, but I think that is a fair way to look at it.

Depending on interest rates, the amount of the damages award, and the length of the delay, compounded interest could result in just a few hundred dollars increase in the money an agency must pay to a complainant.  But the longer the delay and the larger the award, the more likely the agency will be forced to pay thousands of dollars more because of a delay. The best-case scenario is of course to avoid violating Title VII or any of the other civil rights statutes, but if that has already occurred, make sure you don’t add to the problem by taking too long to address it. [email protected]

GSA Offers Guidelines for Re-entry Into Physical Workspaces

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By Michael Rhoads, November 17, 2020

The good news about the pandemic is we (hopefully) may start to see a light at the end of the tunnel. When will a vaccine be ready? When will it be widely available to the public? These questions do not have a definitive answer yet.  However, it is important to prepare now for what steps your agency will have to take once it is feasible to return employees to shared office spaces.  GSA recently put out some guidelines to help agencies prepare for a return to the office in the Return to Workplace Strategy Book.

Office etiquette – a new paradigm

When returning to the office, it is important to prepare employees for a paradigm shift in their behavior. The recommendations from GSA specify that “Frequent Cleaning by Individuals” will be necessary. This may be a sudden change for some employees after a long hiatus on telework, but it’s worth noting that employees “… should not rely on others to disinfect surfaces.” The agency should offer the cleaning supplies, but those supplies will be for agency office use only.

While individuals will be responsible for their own workspaces, the shared workspaces such as conference/meeting rooms, breakrooms, and restrooms will also get a makeover.

For meeting and conference spaces, it is important to ask can the meeting be held virtually instead? Since the capacity of meeting rooms will not be the same as before, consider how many people can fit in the room? Can the door to the meeting room remain open to allow for more ventilation?  Additionally, does the meeting room have the technology to loop in employees who are attending virtually?

Phases for reopening the office

Before the first person walks back in the door, determine the building capacity with your GSA building manager to determine how many employees your office can safely accommodate. A phased reopening approach is recommended.  When determining how many people to bring back in each phase, consider the workspace footprint and how many people may be able to inhabit the space at one time.

Per the GSA: “[T]he reduced capacity of these spaces may affect the number of people who can return to the workspace per phase.” Reassessment will loom large in your phased reopening.  Keep abreast of changes to federal, CDC, and local guidelines.  Employee feedback should be a part of your decision-making process. Also, consider if more parking spaces will be needed by employees who previously used public transportation and now prefer driving.

Individual workspace planning

When considering how to distance your employees’ workspaces, the Return to Workplace Strategy Book provides some great floor plan examples of how to phase in employees safely.  The office capacity used for these examples reflects an office with the maximum capacity of 33 cubicles, and 9 private offices.  Pathways are the spaces where an individual can walk freely.

30% Capacity: The most conservative model would allow individual cubicles to maintain physical distancing at all times. No additional barriers, such as clear plastic shields above cubicle walls to extend the height of the wall, would need to be added. Individuals would be placed in cubicles that allow for other co-workers to move through pathways without contacting a cubicle’s space.

50% Capacity: When half of the office capacity is used, physical distancing mostly would be maintained for individual cubicles except when co-workers walk around in pathways. Barriers such as clear plastic dividers would be added to the top of some cubicle walls to extend the height of the cubicle wall.

75% Capacity: Personal responsibility is the key to this level of employee capacity. Barrier use is important since employees would be encroaching on each other’s space more frequently via pathways around the individual’s cubicle. Clear plastic barriers on top of all cubicle walls in most areas of the workspace would be necessary. At 75% capacity, the use of smaller meeting spaces as individual offices should be considered.

Additional takeaways

Touchless Experience – GSA must approve any changes to fixtures such as doors, faucets, and toilets. However, it is a good idea to update these items to touchless fixtures to reduce employee contact with one another in high touch areas.

Occupancy Monitoring – Sensors can be placed in lobbies, meeting rooms, and break rooms to keep track of how many people are in a space at a given time.

Signage – The guide also offers templates for signage to put up around the office, not only for the employee workspace, but for lobbies, restrooms, breakrooms, and wellness/well-being areas.

The most important takeaway is agencies should be flexible in their approach to returning to the office. As the guide states: “Each agency will need to address specific conditions location by location.” In the coming weeks and months, we will face many challenges brought on by this pandemic, but I am positive the lessons we learn now will only make us stronger for the future that awaits us.

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

OPM Regs Provide Clarification on Clean Record Settlements

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By Deborah Hopkins, November 17, 2020

Earlier this week, new and updated OPM regulations on 5 CFR Parts 315, 432 and 752 went into effect. Among the most significant changes included guidance, inspired by Executive Order 13839, on what agencies may and may not do when settling an employment law dispute with an employee. We’ll look at the specific language in § 432.108, the principle of which is also applicable to part 752 actions.

  • 432.108 Settlement agreements.

(a) Agreements to alter personnel records. An agency shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records, including an employee’s Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse action.

FELTG Note: What does this mean for litigation files? Agencies may need to keep track of documentation for litigation in another forum, such as EEOC or OSC. A narrow reading means an agency probably could keep a litigation file without violating this limitation. We won’t know until more guidance is issued, or the matter is litigated before the still-lacking-a-quorum MSPB. One other item to point out: Proposed action memos are not normally retained in official employee files, as they are preliminary steps that may or may not lead to future action.

(b) Corrective action based on discovery of agency error. An Agency may take discipline out of the record if it discovers errors of fact or legality. In all events, however, the agency must ensure that it removes only information that the agency itself has determined to be inaccurate or to reflect an action taken illegally or in error.

FELTG Note: This makes sense. If an employee is disciplined and it turns out the discipline was not warranted (for example, the discipline was whistleblower reprisal), then the discipline should be taken out of the record.

(c) Corrective action based on discovery of material information prior to final agency action. When persuasive evidence  comes to light prior to the issuance of a final agency decision on an adverse personnel action casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation, an agency may decide to cancel or vacate the proposed action.

There’s a whole lot more on these regulations. If you missed the webinar I held earlier this week, we’re reprising Implementing New OPM Regs for More Effective Disciplinary and Performance Actions on December 3 at 2 pm. Register now before it sells out.

Tips from the Other Side: Dismissing Failure to Accommodate Claim

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By Meghan Droste, November 17, 2020

For the past few months, we’ve been discussing reasonable accommodation issues in this space. Why? Well, they’re interesting.  Also, because I anticipate you will probably see more requests whenever your agency starts to move back to having employees work in the office rather than at home. (Of course, with the recent increases in cases across the country, that might not be for a few more months at least.)  If you do receive more accommodation requests, that may also lead to an increase in the number of EEO complaints alleging a failure to accommodate.

Agencies can, and frequently do, run into trouble when determining whether to accept or dismiss any type of EEO complaint. Reasonable accommodation issues present their own challenges, such as when an agency improperly dismisses a complaint for untimely EEO contact, forgetting to take into account that a failure to accommodate can be a continuing violation. (For more on that, check out my Tips from the Other Side from April 2018.)  But they can also be mishandled in ways that apply more broadly to other complaints. These mistakes are unfortunately common but can be voided easily.

For example, at the acceptance or dismissal stage, an agency should not consider the merits of the claim. Does it seem like the agency has an airtight defense? It doesn’t matter. The only question is whether, assuming all facts are true as alleged, the complaint could state a claim for relief. If it can, the agency should accept it.

What does this look like in the failure to accommodate context? It could be considering the agency’s reasons for not providing an accommodation. It could also be looking at the agency’s efforts to provide an alternative accommodation and finding them sufficient. For example, in West v. National Archives & Records Administration, EEOC App. No. 01A43235 (Sept. 13, 2004), the agency dismissed the complaint for failure to state a claim.  The agency’s reason for the dismissal was that the complainant did not suffer an actionable harm because the agency had attempted to place the complainant in a position that would accommodate her disability.  As a result, the agency found there was no harm that could be remedied. The Commission reversed, finding that the consideration of the agency’s response to the complainant’s request for accommodations went to the merits of the claim.

Agencies should only dismiss a complaint for failure to state a claim if there is no possibility that the complaint articulates a harm for which the EEOC could order a remedy. Although I’m sure it’s possible that a claim alleging a failure to accommodate could meet this standard, I think it will be unlikely in most circumstances. If you find yourself inclined to dismiss a failure to accommodate claim for this reason, I recommend you take a step back and make sure that you aren’t doing so simply because it appears that the agency did try to provide an accommodation or had a good reason for not doing so.  [email protected]

And Now a Word With … Bob Lavigna

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By Dan Gephart, November 10, 2020

We’re still a good half-year away from the next Public Service Recognition Week, but we need not wait until May 2021 to recognize the critical work civil servants have done over the last several months.

You know it’s a challenging year when the (arguably) most well-known and respected federal employee, Dr. Anthony Fauci, needs to be protected from constant death threats – at the same time he and his colleagues are working to save lives. Meanwhile, we need to recognize the important work everyone else out there in FELTG Nation is doing during these very trying, and logistically challenging times.

Recognition is a key part of employee engagement, and so we reached out this week to someone who knows a lot about both subjects. Bob Lavigna (pictured above), the former vice president of research for the nonprofit/non-partisan Partnership for Public Service, directed the annual Best Places to Work in Federal Government. The Partnership was also responsible for the federal government’s wide embrace of Public Service Recognition Week, providing a toolkit, organizing events, and facilitating executive proclamations.

Lavigna, author of Engaging Government Employees: Motivate and Inspire Your People to Achieve Superior Performance, is now director of the CPS HR Institute for Public Sector Employee Engagement. He has also been assistant vice chancellor and director of HR for the University of Wisconsin — and he’s a previous winner of Governing Magazine’s Public Official of the Year award.

Lavigna’s focus these days at CPS is on local and state government, as well as nonprofits, but his advice and perspective are as useful as ever for federal leaders.

DG: Not considering the pandemic, what are the biggest barriers keeping supervisors from being better at employee engagement?

BL: I think there are two primary barriers – not understanding why improving engagement is important and not knowing how to improve it.

In the first case, supervisors often consider engagement to be just another touchy-feely HR fad or about making employees happy all the time. And their job is to deliver results, not make sure everyone is happy. What these managers and supervisors often fail to realize is that improving engagement drives productivity and results. In other words, they don’t appreciate the business case for engagement. As I describe in Engaging Government Employees, decades of research, including in government, have clearly shown that improving engagement can dramatically improve organizational performance.

The second reason concerns how to improve engagement. Too often, even when leaders want to improve engagement, they guess about how. The book 180 Ways to Build Employee Engagement includes great suggestions. The challenge is to figure out what will work in an individual organization or work unit. Too often, leaders act without data on what matters to their employees.

Research has shown that the best way to understand the level of engagement is, and what influences engagement, is to conduct an engagement survey. As we advise the public-sector organizations we conduct engagement surveys for, it’s important to generate survey data and drill down to the work-unit level. We can’t prescribe a solution without understanding what the condition is.

DG: Are remote workplace situations a barrier to engagement, or can remote workplaces be an opportunity to improve engagement? And, if so, how?

BL: There are clearly challenges to maintaining the engagement of employees working remotely. However, while it may be a cliché that the flip side of challenge is opportunity, I think this cliché applies today. Organizations that take care of remote employees can actually boost engagement. Taking care means:

Providing strong and visible leadership. Leaders need to continue to be visible, even if not in person. Leaders also should manage goals, results and outcomes, not just attendance and activities. And effective leaders understand that employees working remotely need to balance their work and personal lives. According to one government leader: “We’ve had to drastically change. 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.” Leaders also communicate through multiple means (i.e., not just email or messaging), using telephone, web sites, blogs, intranet, Twitter, Facebook; and face-to-face communication platforms like Zoom, Teams, WebEx and Skype.

Continue to focus on training and development. It might be tempting to overlook employee development as we scramble to adapt to the COVID-19 workplace. But this would be a mistake. Managers, supervisors and employees should continue to focus on development, using options that don’t require in-person contact, including the explosion in online training.

Recognize accomplishments. Our Institute’s national survey has consistently found that a key driver of engagement is making sure that employees feel valued. This can be tough without physical proximity, but it’s important to recognize the contributions and accomplishments of employees working remotely, as well as the employees who continue to report to their work sites.

DG: Many people are suffering from “Zoom fatigue.” They’re just tired of communicating over the computer. Is there ever a danger of over-engagement?

BL: Over Zooming can be a problem, but is not the same as over-engaging. Our research, and the research of others, has shown that employee engagement is low, including in government. I don’t think we should worry about over-engagement, at least not yet.

But we should worry about over Zooming. As our Institute has emphasized, simply seeing employees at work, whether in person or via computer, is no guarantee that employees are being productive. In fact, too many video meetings may actually reduce productivity, Managers and supervisors need to move away from the need to simply see their employees at work. Instead, they should manage goals, products and outcomes; not activities, time and Zoom attendance. More focus on the former and less on the latter will improve productivity and minimize any Zoom fatigue. [Editor’s note: For more guidance on communication in a remote environment, read about Zoom Zombies, and/or register for The Performance Equation: Providing Feedback that Makes a DIfference.]

We’ll talk more with Mr. Lavigna about the latest trends in employee engagement in an upcoming FELTG Flash. [email protected]

OPM’s New Regs Clarify Who is Responsible for Douglas Factors Analysis

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By Deborah Hopkins, October 26, 2020

There is a lot going on in our country right now. The election is in just a week (though it feels like it’s been going on for years – and in some ways, it has) and the news cycle is packed with that, plus the ongoing pandemic.

In addition, the telework is continuing for many of you. Can you even remember the last time you actually saw your coworkers in person?

I’m sure you’re exhausted and frustrated and tired of 2020. And given that it’s almost November, it might be tempting to check out for the remainder of 2020, and hope that 2021 holds better things.

But wait!

You can’t check out. There is SO MUCH going on in the federal civil service, from changes that have gone into effect in the last few weeks, to changes that will be implemented within the next several, and your agency cannot afford to miss them.

One of the biggest happenings is the issuance of OPM’s regulations modifying 5 CFR Parts 315, 432 and 752, which go into effect November 15. These 199 pages are packed full of information, some of it surprising and some of it unsurprising yet still significant. I’ll provide an overview of the biggest takeaways during a webinar on November 12, but today I wanted to share a portion that directly speaks to one of the most hotly-contested topics in the history of FELTG training: Who should do the Douglas factors assessment — the Proposing Official (PO) or the Deciding Official (DO)?

Take a look at the below addition to 5 CFR Part 752, which previously only had subparts (a) and (b):

§ 752.403 Standard for action and penalty determination.

(c) …The penalty for an instance of misconduct should be tailored to the facts and circumstances… Within the agency, a proposed penalty is in the sole and exclusive discretion of a proposing official, and a penalty decision is in the sole and exclusive discretion of the deciding official.

To some of you, that may seem like it’s nothing new. However, if you look at the discussion under 752.202, which also applies here, the emphasis is on an individual determination and assessment of each distinct case of employee misconduct. The discussion says, “there is no substitute for managers thinking independently and carefully about each incident as it arises, and, as appropriate, proposing or deciding the best penalty to fit the circumstance.” Subpart (d) also says that a minor indiscretion for one supervisor based on a particular set of facts can amount to a more serious offense under a different supervisor.

So, how does this answer the question about Douglas? Well, taken along with the context provided, each case is unique, and who better knows about all the details relating to the misconduct and its effect on the agency than the Proposing Official? And what better way to tailor the penalty “to the facts and circumstances” than having the PO do a full Douglas penalty analysis? We’ve been saying it for 20 years at FELTG, and we’ll be saying it for the next 20 years.

This language also speaks to advisors who might disagree with the PO’s proposed penalty or the DO’s ultimate decision, and might try to change their minds. The regulation clearly states the penalty is entirely up to the PO and DO. As advisors we may advise on an acceptable range of options, but that document is going to be signed by the person taking responsibility so it needs to match their analysis.

Stay tuned in the coming weeks as we discuss more takeaways from the regulations. Feel free to email Ask FELTG ([email protected]) if you have any questions. In the meantime, take care. [email protected]

Good News: With This FLRA, It is a Good Time to be an Agency

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By Ann Boehm, October 14, 2020

You may be aware that the FLRA recently issued three decisions that are definitely on the pro-agency side of the spectrum:  U.S. Department of Education and U.S. Department of Agriculture, 71 FLRA 968 (Sept. 30, 2020), which changes the standard for an agency’s obligation to bargain changes to conditions of employment; U.S. Office of Personnel Management, 71 FLRA 977 (Sept. 30, 2020), which makes zipper clauses a mandatory subject of bargaining; and U.S. Department of Agriculture, Office of the General Counsel, 71 FLRA 986 (Sept. 30, 2020), which allows for Agency head review of expiring, existing collective bargaining agreements.

As you can imagine, these decisions have drawn the ire of the major Federal unions. They also received some media attention. The headline for an October 2 Government Executive article is pretty strong:  “Labor Authority Abandons Decades of Precedent, Eviscerates Union Bargaining Rights.”

Also, the lone Democrat on the FLRA, Member Ernest DuBester, dissented in all three decisions.

So, what’s going on here?

Is this the end of collective bargaining in the Federal government as we know it?

Not necessarily. But with these three decisions, this FLRA is trying to make things easier for agencies in the collective bargaining context.

Here are some of my general observations on these three cases.  

Observation Number 1

Each of these cases is a “Decision on Request for General Statement of Policy or Guidance.” Section 2427.2 of the FLRA’s regulations allows for issuance of such decisions, and section 2427.5 sets forth the standards the FLRA is to follow in determining whether to issue a general statement of policy or guidance. 5 C.F.R. §§ 2427.2, 2427.5.

These types of decisions have been rare in the history of the FLRA, but more common with the current FLRA. The issuance of three such decisions on one day is notable.

Why is the FLRA proceeding in this way? I suspect it is because there is no General Counsel for the FLRA. A nomination has been pending, but the Senate has not confirmed. That means no unfair labor practice (ULP) complaints are being prosecuted before Administrative Law Judges (ALJ), since only the FLRA General Counsel can prosecute ULP complaints. ALJ decisions can be appealed to the FLRA for review. Without ULP complaints and ALJ decisions to review, there are areas of Federal sector labor-management law that this FLRA has not been able to consider – or perhaps more significantly, reconsider.

Agencies are aware of this FLRA’s pro-agency tilt, so they are cleverly utilizing 5 C.F.R. § 2427.2 to seek general statements of policy or guidance. The FLRA is happy to oblige.

In one of his dissents, Member DuBester notes that “[i]n several recent decisions, my colleagues have reversed long-standing and well-reasoned [FLRA] precedent based solely upon their view that it was inconsistent with the plain language of the Federal Service Labor-Management Relations Statute.”  U.S. Dep’t of Agriculture, OGC, 71 FLRA at 990. He also states, “[i]f one thing is clear from the rash of policy statements that the majority has recently issued, it is that this is no way to establish precedent on significant matters affecting federal-sector labor relations.” Id. at 991. No doubt, the unions will challenge these decisions in Federal court. It will take a while to get through that process, but stay tuned over the next year to see whether the courts think the FLRA has overstepped its bounds.

Observation Number 2

Good golly, these decisions have a lot of footnotes. If you have taken our legal writing courses (or really any writing course), the usual guidance is to avoid footnotes. They are distracting. If it’s important enough to mention, put it in the text. OK, I’m off my soapbox now.

Observation Number 3

I don’t think these decisions are horrible. Granted, I spent a good part of my career on the agency side of matters. For purposes of this month’s article, let’s focus on the FLRA’s decision in U.S. Department of Education. (I’ll cover the other two decisions in subsequent articles. Or, if you just can’t wait,  attend the webinar Precedents Broken: The New Future of Collective Bargaining on November 2 for more information.)

Based upon my reading of the decision, I think it would be fair to say the FLRA pushed a reset button on management bargaining obligations with unions. I would not say that the decision deprives unions of their bargaining rights.

The decision focuses on the bargaining obligations under 5 U.S.C. § 7106(b) — “when an agency makes a change to a condition of employment, it may be required to bargain over either procedures or appropriate arrangements (sometimes referred to as ‘impact and implementation bargaining’).”  U.S. Dep’t of Education, 71 FLRA at 968.

Has the FLRA diluted the management bargaining obligation? Yes. Eviscerated the unions’ collective bargaining rights (as announced by Government Executive)? Not so sure.

In this recent decision, the FLRA returned to a bargaining obligation standard originally set under interpretations of Executive Order 11491, Labor-Management Relations in the Federal Service (Oct. 29, 1969), and applied by the FLRA until 1985. That standard required bargaining “only when a change had a ‘substantial impact’ on conditions of employment.” U.S. Dep’t of Education, 71 FLRA at 968.

This standard is also applied by the National Labor Relations Board (NLRB) in determining whether private sector employers are obligated to bargain over work changes. U.S. Dep’t of Education, 71 FLRA at 970. NLRB case law is regularly used by the FLRA and even the courts for guidance on labor issues. Id. n.30.

Since 1985, the FLRA has applied a different standard that required bargaining “whenever a change to a condition of employment was ‘more than de minimis.’” Id. According to this decision, “the [FLRA] has effectively extended the bargaining obligation under the de minimis test to conclude that a matter triggers an agency’s duty to bargain, no matter how small or trivial.” Id. at 969. I think that’s a fair point.

One of my favorite cases that illustrates a pretty heavy, and in my opinion, ridiculous bargaining obligation on the part of an agency involved vending machines. The agency changed the vending machine cost of a soda from $.50 to $.55. Marine Corps Logistics Base and AFGE, 46 FLRA 782 (1992). The FLRA found that the agency’s failure to bargain over this change in working conditions was an unfair labor practice. Id. OK smarty pants lawyers out there – the agency in that case did not argue that this was a de minimis change not subject to bargaining. But the FLRA did find that there was an obligation to bargain over a five-cent change in vending machine cost. If that’s not de minimis, I don’t know what is.

Interestingly, in the D.C. Circuit case cited in Member DuBester’s dissent, where the court adopted the FLRA’s de minimis standard, the union challenged the standard as too onerous. Association of Administrative Law Judges v. FLRA, 397 F.3d 957, 963 (Jan. 28, 2005).

The union argued that the de minimis standard would damage union bargaining efforts and cause confusion and extensive litigation. Id. Wow. Think that one through. Anyway, the court agreed that the FLRA properly interpreted its own statute by establishing the de minimis standard. And now the FLRA has decided to change that interpretation. Technically, that’s the FLRA’s job — to interpret its statute.

I’m sure there are agency labor relations specialists and counsel who have negotiated minimal changes to working conditions with unions. Congress explicitly stated in 5 U.S.C. § 7101(a) that collective bargaining “safeguards the public interest” and “contributes to the effective conduct of public business,” but did it really intend for just about anything to be negotiated? The FLRA’s change to the higher “substantial impact” standard may be a healthy reset. Of course, the courts will have to agree. But for now, it’s a good time to be an agency! [email protected]

Precedential Fed Circuit Decision: Which Expert Determines If Employee is Unfit?

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By William Wiley, October 14, 2020

Last month, the Federal Circuit issued Ramirez v. DHS, No. 2019-1534 (Sept. 15, 2020), which dealt with the concept of an “unfit” termination.

What the court is calling an “unfit” termination is more precisely a “medical inability to perform” removal. This is a somewhat standard, though relatively infrequent, cause for firing someone from a government position. One can be unfit because he sustained an injury and can no longer physically do the work that’s assigned. Or, as charged in this case, the employee can be unfit for mental reasons. Although DHS chose the less common word “unfit,” the more classical term of “medical inability to perform” is commonly found in the case law. We can’t tell you exactly how often these are done relative to other 752 removals, because the Board does not parse them out, but they do not stand out as unusual by any means. FELTG has been teaching how to conduct these sorts of removals for several years now as part of our weeklong Absence, Leave Abuse & Medical Issues Week. [Editor’s note: Save the date! The next AMI Week will be held April 16-21, 2021.]

How do these compare to other types of 752 removals? The agency has to have preponderant proof that the employee is medically unable to perform, just as the agency would have to have preponderant evidence that the employee was absent from work, stole from the supply locker, or beat up a coworker. The agency must also follow the reasonable accommodation process to determine whether the employee can be reassigned to a position he can perform within his medical restrictions.

The main difference with these types of removals is that medical evaluations by health case “experts” often are more subjective in nature, and can easily be in conflict with each other, even when performed in good faith. That’s when arbitrators and judges have to resolve a battle of the experts and decide which conclusions seem to make the most sense based on the objective medical findings. As you can imagine, its exceedingly difficult to make these sorts of judicial determinations. The arbitrator is not trying to decide who is telling the “truth” as is his responsibility in routine misconduct cases, but whose medical judgment is most likely to be correct. Even highly trained medical experts cannot always agree on that.

In some ways, this makes it easier for the employee to defend himself in an unfit for duty removal as compared to a misconduct termination. If you fire me for theft and you have video of me stealing the laptop, there’s not much I can do to defend myself. However, if you fire me because of a subjective medical assessment of my behavior by your expert, I can relatively easily find my own expert who will view the same behavior and subjectively assess it as not warranting removal. Read the legendary Woebcke v. DHS for a mind-blowing subjective medical assessment.

The Ramirez case is categorized as a precedential ruling from the Federal Circuit, but it is new only in that it addresses the specific evidence derived from a third-party psychological exam relied on by the agency to fire an employee. The legal principle put into motion in making this assessment is as old as the hills. Our Constitution requires agencies to produce all the important evidence it relies on to fire a federal employee. The cases cited by the Federal Circuit are as foundational to civil service law as legal precedent can be, several going back to the early 70s and one even dated 1959. That’s how well-established this bedrock principle is.

Had the psychological exam (MMPI) been interpreted independent of the agency, I doubt that the court would have ordered its production by the agency for evaluation by the appellant’s expert. For example: If a state revokes an employee’s driver’s license, and the agency fires him because he needs a license to perform his job duties, it does not have to produce the evidence relied on by the state in revoking the license. It is free to accept the results of the state’s decision as an independent assessment. In comparison, the MMPI in this case was ordered by the agency. Therefore, it is agency-controlled and should have been produced as evidence relied on.

In my view, the agency had an obligation from the beginning to produce the evidence of the MMPI assessment. It caused the assessment to be done, it controlled who did the assessment, and the assessment was at the heart of the reason for firing the guy. Bottom line: The court’s holding is “new” in a very limited sense of the specifics, but the legal principle of due process that controls the outcome of this decision goes back to the second Magna Carta, the one issued in 1215. [email protected]