Harassment Investigation Challenge: Who is Telling the Truth?

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By Dan Gephart, September 29, 2020

If you’re a regular reader of Barbara Haga’s articles in our monthly newsletter (and if you’re not, what’s wrong with you?), you may have noticed a common thread weaved within her last two articles.

Sometimes, federal employees lie.

Earlier this month, Barbara told the tale of an FAA civil engineer who was asked point blank if she used her work computer “for unofficial personal reasons while on duty for any reason.” Her reply was a simple “no.” Unfortunately for the engineer, the agency had already compiled an Internet history of the computer in question and found more than 33,968 nonwork-related transactions on sites, such as Amazon, eBay, and Etsy. Further investigation revealed that the employee was actually running her Etsy business from her work computer.

A month earlier, Barbara wrote about an employee who denied sending inappropriate text messages, many of a racist nature, on her phone by replying “I do not admit to the validity of these messages.”

In both of these cases, the agency had one thing going for it – a lot of evidence.

But when you’re doing investigation of hostile work environment harassment, sometimes there isn’t much evidence, so you end up with the classic he said/she said situation. How do you determine credibility, especially when there is so much raw emotion involved? And how do you do it during a pandemic, when the interviews are being done remotely?

Next week, October 6-8, 2020, FELTG will present the virtual training Conducting Effective Harassment Investigations. On the third and final day of the seminar, FELTG instructor Meghan Droste will cover everything from interviews to writing the report, including a module on determining credibility.

First off, the EEOC has recognized that being able to see a witness is crucial to gauging credibility, so be sure that you have a reliable webcast platform like Zoom or Skype. Although you’re no longer in the same room, you should still be able to read demeanor and body language.

Here’s what you do: Start with easy questions. Monitor how the employee moves, including facial expressions. This sets a baseline for how the interviewee will react when telling the truth. Then start to toss in tougher questions. Look for a difference in reactions. Has the employee’s pitch or speech rate changed? What about eye contact? Are they fidgeting at all? Are their answers limiting details or are they adding more? Are they answering your questions with the same amount of certainty?

You can learn a lot from body language. Or, you may learn very little, because body language is a highly-contested area of credibility findings. Therefore, you can’t rely on just body language to make a determination. There are several other ways that truth, or more accurately, lies can be revealed.

Consider the following:

  • Detail. How specific was the witness’s testimony? Did the witness deny the allegations in detail or just generally? Did anyone leave out important or obvious information during the interview?
  • Corroboration/Conflict. Are the conflicts over minor or significant issues? Does the witness’s testimony contradict other testimony? Was the witness’s story consistent through the testimony or did it change on a second telling?
  • Plausibility. Which story make the most sense? Are the details in the testimony realistic?
  • Motive. Does the employee have a motive to lie about, exaggerate, or deny the incident? Do any of the witnesses have special loyalty to or a grudge against anyone involved in the incident?
  • Past record. Have there been any prior incidents between the complaining and accused employee? Does the accused have a history of this type of misconduct?
  • Demeanor. Was anybody’s reaction unusual, as compared to their typical demeanor?

Again, you can’t rely on any one of these factors when determining credibility. But taken as a whole, you should be able to develop some sense of who is telling the truth. [email protected]

Good News – Letters of Reprimand Save You Time and Money

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By Ann Boehm, September 16, 2020

I left the government in 2018, I spent a short time working in sales. In nearly every training session or staff meeting I attended, we were told to make sure the potential client knows your goal is to save them time and money. It makes sense. Those are things that people care about. (And now that I have told you that, you will now start to hear that “time and money” mantra from realtors, car salespeople, bathtub refinishers, gutter replacers, and anyone else trying to sell you something. Really. Start paying attention.)

I know what you’re thinking: We work for the government – we have all the time and money in the world. In some ways, that is true. But if you have a problem employee, do you really want to waste any more time and money than you have to?

Let’s start with time. So many agencies just love giving out letters of caution/letters of instruction/letters of warning to employees who engage in misconduct. Here at FELTG, we call those “lesser letters.” True, they are legal. But they are a complete waste of time, legally speaking. They don’t count as prior discipline. They are nothing more than a reminder to an employee that they have to abide by the agency’s rules.

To count as prior discipline for progressive discipline purposes – the ultimate goal in employee discipline – the employee’s action has to be clearly erroneous, the employee must be informed in writing, the action must be a matter of record (i.e., in the eOPF), and the action must be grievable and threaten future discipline. Bolling v. Air Force, 9 MSPR 335 (1981). Letters of reprimand satisfy these criteria. Lesser letters do not.

For some reason, supervisors, counsel, and HR professionals feel great comfort when they give an employee a “letter” — one of the lesser letters. When I supervised Discipline Management, we kept track of how many lesser letters we gave out each month. The number hovered around 35 per month. That’s a lot of wasted time.

Once I attended FELTG training and learned that only letters of reprimand count as prior discipline, we slowly stopped the constant issuance of lesser letters. I had to retrain  a lot of supervisors, managers, and employee relations experts on why we should issue letters of reprimand when we wanted to issue a “letter.” We ended up dropping the number of lesser letters to zero (or very close to it), which is the right thing to do, since the lesser letters are undefined and have no legal value.

  1. So that covers saving time. What about saving money? Lesser letters provide the agency with no disciplinary value, but they still provide an avenue for an employee to grieve or file an EEO complaint or file a whistleblower retaliation claim. Last time I checked, litigating those matters costs money. And heck, they take time too.

In Massie v. Department of Transportation, 2010 MSPB 106 (2010), the Agency issued the employee a Written Admonishment (yep, a lesser letter that was not placed in the eOPF). The employee filed a whistleblower retaliation complaint with the Office of Special Counsel (that took agency time and money).  He also filed a grievance under the collective bargaining agreement, which the agency settled by expunging the Written Admonishment (that took agency time and money). The employee then filed an Individual Right of Action appeal before the MSPB. The MSPB administrative judge scheduled a hearing, cancelled the hearing, scheduled the hearing, and then cancelled the hearing based upon the agency’s motion to dismiss the appeal for lack of jurisdiction (lots of agency time and money!).

The administrative judge dismissed the case and the employee appealed to the MSPB. And he won his appeal. The MSPB said this: “[R]egardless of whether the agency placed the Written Admonishment in the appellant’s Official Personnel Folder or not, he has nonfrivolously alleged that the agency subjected him to a covered personnel action when it issued him the Written Admonishment.” Id. (emphasis added). The MSPB then remanded to an administrative judge for a hearing. Good golly. All that for a letter that really did nothing for the agency.

So what’s an agency to do?  If an agency does not think an act of misconduct merits a letter of reprimand, send a corrective email. While an email has zero disciplinary value (um, just like a lesser letter), it’s also unlikely to generate a grievance or EEO complaint or whistleblower case. It can be a basis for a subsequent failure to follow instruction charge, or show that the employee had notice of a rule.

If you want to write a letter, make it a letter of reprimand. Help yourselves out. Save time and money! Eliminate the lesser letters! You’ll be glad you did. [email protected]

What Dave Wants, Dave Gets: Sexual Harassment is Misconduct

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By Deborah Hopkins, September 16, 2020

We discuss misconduct a lot during some FELTG training classes. And in other classes, we discuss sexual harassment in the workplace. Sometimes these two matters are discussed in the same class because rarely do workplace issues occur in a vacuum.

Among the worst types of misconduct to occur in the federal workplace is sexual harassment, particularly the egregious cases. It’s been almost three years since the #MeToo movement gained widespread traction, but cases of sexual misconduct, harassment, assault and more are still problems agencies face today.

Let’s look at an EEOC decision from last summer. The Complainant made allegations that her second-line supervisor subjected her to numerous incidents of sexual harassment for a period of approximately five months, including:

  • Continuously talking about his sex life.
  • Making sexually suggestive comments in the workplace.
  • When she was putting eye drops in her eyes, he said, “Let me do that for you. I am real good at putting things in.”
  • Discussing women he had affairs with, including his “high school sweetheart,” whom he said he got pregnant three times.
  • Talking about his ability to get sex whenever he wanted, stating, “What Dave wants, Dave gets.”
  • When the Complainant told him she was not feeling well and might go home, he stated that she might be pregnant and told her about his wife stating that she (the wife) needed a pregnancy test and said, “Well, if you hadn’t raped me, I wouldn’t be asking for the test.”
  • Refusing to clean the women’s restroom because “women are dirty and bleed all over the place and are smelly.”
  • Threatening to hit the Complainant with a cardboard roll.
  • Making comments to the Complainant such as said, “Why don’t you try smiling, darling?”
  • Physically touching her in a sexually suggestive or otherwise inappropriate way on multiple occasions.
  • Hitting her with a yardstick.
  • During her performance review, pulling her chair next to his desk, and, after the review, putting his hand on the inside of her thigh and saying, “See, it wasn’t that bad.”
  • Tousling her hair and poking her in the ribs, and after being told to stop, continuing to poke her and asking, “Oh, you are ticklish?”
  • Touching her on the back and shoulders several times, in front of co-workers.

These are just some of the events that were alleged, a number of which were witnessed by others, and many more are detailed in the case. Based on the factual record the EEOC found that the Complainant was subjected to a hostile work environment because of the unwelcome verbal and physical conduct based on sex, that was sufficiently severe or pervasive to create an abusive working environment.

The EEOC noted that a second-level supervisor placing his hand on Complainant’s leg at her thigh, in and of itself, was sufficiently severe to constitute a hostile work environment, because it was an unwelcome, intentional touching of an intimate body area. In addition, the EEOC found the agency liable. The Agency was ordered, among other things, to ensure that the Complainant was removed from the Store Manager’s supervisory/managerial authority. Terrie M. v. DOD, EEOC Appeal No. 0120181358 (Aug. 14, 2019) [PDF].

You may be wondering why the EEOC only told the agency to separate the Complainant from the offending supervisor, instead of something more severe. That’s because the EEOC does not have the authority to require the agency to discipline federal employees who engage in misconduct. However, you can imagine the issues that arise if this level of misconduct goes undisciplined – issues we will discuss during the upcoming live virtual class Conducting Effective Harassment Investigations, October 6-8.

So, do you want to know what happened in the end? Well, “Dave” quit his job and left the country, so at least we know he isn’t currently doing this to another federal employee. Or, let’s hope he’s not. Dave worked for DOD and we know they have locations all over the world. And because this egregious sexual harassment isn’t in his disciplinary record (remember, he quit before he was disciplined), I sure hope a new employer bothers to call his former supervisor for a reference. [email protected]

EEOC Provides Guidance on Processing Conflict Cases

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By Meghan Droste, September 16, 2020

“Today everything’s a conflict of interest.” Sid Vicious’ words are more  than 40 years old, but they do seem appropriate these days. While issues of conflicts of interest have been in the news for the past few months and years, that’s not quite what I’m here to share with you today. Instead I have a more relevant (and possibly less controversial) topic for you — a recent report from the EEOC on how agencies should handle EEO cases that present conflicts of interest.

The Commission’s latest federal sector report, released in June: Best Practices in EEO Conflict Case Management for Federal Agencies, provides recommendations for processing EEO complaints against the head of an agency, an immediate staff member of the head of the agency, the EEO director or a supervisor in the EEO office, or other individuals who hold high-level positions at the agency. The Commission created this guidance based on survey responses from 55 EEO directors, complaints managers, deputy directors, and others connected with the EEO process. The Commission also held two focus group meetings with participants from nine agencies and met with EEO officials from the Department of Agriculture to review the USDA’s process for conflict cases. The EEOC developed five recommended best practices for agencies.

Have a written policy for when and how to process conflict complaints. The process should include a definition of the types of cases that constitute conflicts so that EEO officials and complainants are clear on when the procedures apply. The Commission also recommends that the policy designate the official who will be responsible for making the decision on whether a complaint presents a conflict, and a point of contact, likely outside of the EEO office, for initiating EEO contact in potential conflict cases.

Have a written standard operating procedure for processing conflict complaints. The Commission notes that it is best for the SOP to designate a conflicts case manager and alternate conflicts case manager, and  to outline their responsibilities.  These may include ensuring the timely processing of complaints and serving as a point of contact if the agency sends the complaint to another agency for processing.

Take steps to ensure the confidentiality of conflict cases. This could include password protecting all electronically stored documents in conflict cases and strictly monitoring who has access to the documents. Another step may be to store information about case deadlines and case status in a separate conflict case document to which only the conflicts case manager and alternate have access.

Use memoranda of understanding to set up agreements with other agencies or third parties to process conflicts cases. While many agencies have informal agreements with other sub-agencies, the best practice is to have a written agreement in place, the Commission suggested. The written agreements should be specific on how the agency processing the complaint will ensure timely processing and when and to whom it will provide status updates.

Assign the writing of final agency decisions in conflict cases to another agency or third party. This will apply both when a complainant requests a FAD, and when an administrative judge sends a complaint back to the agency to issue a final action.

Conflict cases may not come across your desk very often, but that highlights the need to have a policy and procedure in place in advance so you don’t lose any of your 30 days to complete counseling or 180 days to investigate a formal complaint trying to set one up. [email protected]

Flexing Schedules to Help Employees Meet Child Care Needs

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By Michael Rhoads, September 16, 2020

The coronavirus has forced everyone to rethink how our society functions. One of the most difficult functions to overcome for me and my peers who have young children has been how to manage childcare while both parents still work full-time jobs.

When on Zoom or other online meetings, our small “co-workers” can be heard playing, screaming, and asking an innumerable amount of embarrassing questions (Daddy, can you take me to the bathroom?)

Childcare options have shrunk for families. Daycare facilities have closed or have been forced to limit the number of children they can accept for safety reasons. Public schools have been the foundation of childcare for most families. However, when a school district moves to online-only or hybrid schooling, it adds to a family’s childcare needs. If your family is fortunate enough, there may be a willing grandparent or relative to help out, or maybe your family is able to hire in-home care such as a nanny to help lighten the burden. Trying to determine what’s best for your child and your career feels overwhelming at times.

How can you as a supervisor help your employee face their childcare needs? The majority of the workforce is currently under a telework arrangement, which does help alleviate commuting time, but what other opportunities are you able to offer? I took a look at OPM’s guidance and found a few ways federal employers can be flexible without compromising the agency’s mission.

If the agency or your collective bargaining agreement allow, flexible work schedules are worth a look.  OPM offers examples of flexible works schedules, including flexitour, gliding, variable day, variable week and maxiflex, in “Fact Sheet: The Use of a Maxiflex Work Schedule in Response to Coronavirus Disease 2019 (COVID-19).” After reviewing the examples, maxiflex caught my eye. OPM described it as a way to address a “wide range of COVID-19 work situations.” Per OPM:

A maxiflex work schedule is a type of flexible work schedule (FWS) that, when combined with telework, provides the most flexibility to employees who need to address the dual demands of work and caregiving, as well as other personal responsibilities in response to COVID-19.

One of the early signs an employee is having trouble with childcare could be irregular leave patterns. In order to recognize other signs of leave abuse, and how to effectively manage employee leave, FELTG is hosting a Absence, Leave Abuse & Medical Issues Week, the week of September 28.  Barbara Haga, Ann Boehm, Katherine Atkinson, and Meghan Droste will tackle what you need to know about leave and how to handle any potential abuse in the current climate.

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

Tips from the Other Side: No ‘One Size Fits All’ for Accommodations

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By Meghan Droste, September 16, 2020

This month, I return to our ongoing review of important issues related to reasonable accommodation requests.  Unfortunately, I have seen agencies too often make very avoidable mistakes when it comes to responding to requests for accommodations. Often times these mistakes seem to result from an instinct to apply a one-size-fits-all approach to handling requests. As the Commission has reminded agencies time and again, that strategy just does not work in the area of reasonable accommodations.

One way in which this can come up is in determining the essential functions of a position.  I know it can be tempting to look at the position description (“PD”) and use that as the sole definition of the essential functions for the position at issue, but it’s just not that simple. The Commission’s decision last month in Cecille W. v. U.S. Postal Service, EEOC App. No. 0120181915 (Aug. 6, 2020) is an excellent example of why that approach does not work.

In Cecille W., the complainant worked as a rural mail carrier. The PD for that position included a requirement that employees be able to lift up to 70 pounds. When the complainant requested reasonable accommodations, the agency informed her that she was not a qualified individual with a disability because her lifting restrictions (no more than 20 pounds) made her unqualified for her position as a rural carrier. The agency also concluded that the complainant was unqualified for any other positions to which the agency could potentially reassign her, as they all included 70-pound lifting requirement.

After a hearing, the administrative judge found in the agency’s favor. The administrative judge agreed with the agency that the complainant was not qualified because of her lifting restrictions.  The administrative judge also agreed with the agency’s argument that accommodating the complainant would be an undue hardship because it would require the agency to provide significant assistance to the complainant and reduce its production standards. Does this seem like an easy and obvious win for the agency?

The EEOC didn’t think so. The Commission reversed the finding in the agency’s favor because of one big issue — neither the agency nor the administrative judge looked beyond the PD when determining the essential functions of the complainant’s position. If they had, they would have seen that the complainant had been performing her rural carrier duties with a 20-pound lifting restriction for years. She found workarounds to avoid lifting heavy trays of mail and needed minimal assistance to successfully perform her job without any complaints from management.

They also would have seen that the post office had an informal policy that on the rare occasions they received a heavy package, the custodial staff would assist the carriers with delivering the package to customers.

As a result, there was no real need for the complainant to be able to lift anything beyond her 20-pound lifting restriction. The Commission also found that the agency was only speculating when it argued that accommodating the complainant would be an undue hardship, particularly because the record was clear that the complainant had not required significant assistance to perform her duties.

Agencies need to process requests for accommodation quickly. As I discussed in June and July, an unnecessary delay can result in a finding against the agency. But you should not try to meet your obligation to move quickly by just applying a one-size-fits-all approach. You must make sure you process every request with an individualized assessment of the employee’s needs and also of the specific position at issue. [email protected]

One Decision – A Lot of Lessons, Including the Power of Accepting Guilt

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By Barbara Haga, September 16, 2020

Sometimes you pick up a case that is just chock full of good information. That happened when the case of Lee v. Federal Aviation Administration, No. 2019 -1790 (Fed. Cir. July 29, 2020) appeared in a recent weekly MSPB case report. (OK, this is the second column in a row using decisions that were included in the case report, so maybe you should subscribe. Just click here and sign up.) This decision covers lots of my favorite topics – technology misuse, lack of candor, potential for rehabilitation, and the impact of contract language on management’s ability to discipline. 

Misconduct

Ms. Lee was a civil engineer for the FAA.  In April 2017, when the series of events that led to the discipline began, she had worked for the FAA for five years. She received an e-mail containing inappropriate pictures from a co-worker. Somehow management learned of this, and, as a result, Lee’s second-line manager, John Smith, requested that the agency’s investigations unit pull the Internet and email history from the sender’s and Lee’s work computers. Unfortunately, when the results came in there was a lot more going on besides that inappropriate e-mail.

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.”

I am guessing that most readers are familiar with Amazon and eBay. In their words, Etsy is a “global marketplace for unique and creative goods.” It is a place where crafters can sell goods and people who supply crafters offer items. For a fee, you can advertise goods on their site, conduct online transactions, and sell to individuals anywhere.

I checked as I was preparing this column, but “BoosTinyBits” isn’t registered as a seller anymore, so I can’t tell you what was for sale at “BoosTinyBits.”

Investigation

Lee was provided a notice that she was to report for an investigatory interview regarding potential discipline about allegations of “Misuse/Abuse of Government Computer/Internet/Email, Misuse/Abuse of Government Time Sending/Receiving Inappropriate Jokes/Pictures of a Sexual Nature, and Failure to Report.”

Her union representative accompanied her. From the decision, we learn that Lee did not know at the time of the interview that the forensic report had been delivered.  When asked if she had used her government computer “for unofficial personal reasons while on duty for any reason,”  she answered “no.” She answered “no,” “I don’t know,” and “I don’t understand the question” to several different questions regarding making purchases from eBay and Amazon while on government time and if she was conducting personal business on government time.

We cannot tell from the decision what sort of advice the union official was giving. Maybe Lee convinced the union rep that this was a set up and she never did any of these things. Perhaps the union rep was called at the last minute to participate in a Weingarten meeting and had no opportunity to consult with Lee prior to the meeting. Maybe the union rep told Lee the best option might be to confess and beg for mercy, but she did not take that advice.

I do understand that sometimes people have trouble acknowledging when they have transgressed, but when caught red-handed, I would think the individual would have been more forthcoming than what happened here. Could anyone who is a college graduate and trained engineer working in the Federal government in today’s world not realize that the IT folks would be able to track the sites she had visited and how many times?  Given the thousands of transactions it certainly was not anything that could be characterized as incidental or minimal personal use. The same failure to acknowledge misconduct happened in last month’s column.

Potential for Rehabilitation

The value of the Douglas factor on potential for rehabilitation is often lost on employees who have engaged in bad behavior, and their representatives. When you watch Law and Order, the operative response by the person being questioned may be to deny everything or to refuse to answer, but that is a vastly different world with hugely different rules. Unfortunately, I think this perspective has spilled over into our administrative actions.  Regrettably, it may be short-sighted.

Potential for rehabilitation means that there is some sign that the person learned from the mistake(s) and would not repeat the behavior.  It is a big deal. I was not being facetious about admitting the misconduct and begging for mercy. I have seen it work. The employee has done something serious and is caught. He or she says to the manager, “I did something really awful and I don’t deserve anything from you.  But, if you will give me a chance, I will prove to you I can change.” It works. In my experience, managers do not jump out of bed in the morning saying: “Oh, boy, I’m going to fire someone today.” When faced with adverse actions, managers may be thinking “I don’t want to have to make a decision that takes away someone’s livelihood.” The manager knows that a  firing means a vacancy. Filling jobs is not an easy thing. It takes a long time, a lot of work to interview and check references, and, for some, it takes a long time to get investigations done so that the individual can start work. A lot of time, money, and energy is invested to get folks up to speed to do the job. If the manager is convinced that this person is salvageable, he or she may take the individual up on that offer. Maybe a last chance will be offered. If the employee can change, it is a win-win.

I was a manager for most of my career. If one of my employees came to me and said, “I did something terrible and I need to tell you what happened,” that would get a different kind of response than if I found out some other way. It is definitely something to think about. We will spend more time on the potential for rehabilitation and the Lee decision next time.

You’re Communicating a Message: Can Your Employees Understand?

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By Dan Gephart, September 16, 2020

Let Your Light Shine

As the pandemic reached its fourth month, a friend from Ohio sent us a package — sticky letters spelling out the aforementioned message that would beam hope and inspiration, once affixed to our fridge.

Even before the pandemic, my wife and I worked from home and the refrigerator was the place in our tiny two-story house where we regularly crossed paths. As the pandemic continued to wage war with my anxiety, the fridge visits have become more frequent, and the aspirational message has provided affirmation for several weeks since.

Oh, who am I kidding? Let Your Light Shine lasted all of three days. Tops. Yeah, yeah, yeah, it was a moving message and all that. My wife and I are creative types — two nerds who have spent our working lives writing and editing and a good portion of our free time competing ferociously against each other in Scrabble. Each trip to the fridge meant another chance to let our scrambled lights shine.

Heighten Sully Riot

So it has become a regular competition between us to rearrange the letters into a new message. The goofier, the better. Our only rule: They have to be real words.  Our anagramming competition was on my mind as I listened to FELTG Instructor Anthony Marchese, Ph.D., teach several communication-related virtual training classes and webinars over the past few weeks. For many of you, it’s that time of year when you’re providing performance reviews for your charges. Dr. Marchese’s training on performance feedback, communication, and leading virtually is always timely, but particularly so in the late Summer/early Fall. If you missed out on Dr. Marchese’s recent classes, you can register now for just-announced virtual training The Performance Equation: Providing Feedback That Makes a Difference, which will be held on Wednesday, Oct. 28 from 12:30-4 pm ET. (Dr. Marchese also teaches many of our Leadership and Supervisory courses, all of which can be taught virtually.)

Managers and advisors often want to make sure that everyone gets the same message. And that’s important. But not everybody responds to the same communication style. Someone may hear Let Your Light Shine, while another employee will hear There Lying Loutish.

Dr. Marchese says that a “one-size-fits-all communication minimizes the likelihood of meaningful engagement and incites unnecessary conflict.” He suggests creating your own “rules for engagement” by exploring your employees’ behavioral workstyles. This is particularly important when discussing feedback.

There are typically four languages spoken at work – Analysis, Achievement, Amicable and Artistic. Understanding how your employees individually fit into these groupings will help you to determine the best ways to individually communicate to each. Some may be energized by a detailed plan. Others may find such plans alienating. Spontaneity and enthusiasm will motivate some but alienate others.

Oy Let Lies Turn High

In his recent webinar Leading Virtually, Dr. Marchese defined these different languages and provided clear guidance for how to identify an employee’s language and how to best communicate to that individual. Do you need to know your and your employees’ Work Languages in order to be successful at communicating in the workplace? No, you don’t. But it is a tool. And it’s an effective tool. But there are others. Nothing can truly replace getting to know your employees’ individual styles and knowing how best to convey important information.

Hero Tilly He Guns It

As a manager, you want to create an experience that allows each member to offer his/her/their best, and then meld their contributions into something that no individual could have done alone. The performance review is that time of the year where you can take stock with each employee about his/her/their contributions and set a path forward for the next year.

But the performance review is not a stand-alone event. It should serve as a culmination of a year’s worth of work and feedback. The last thing you want to see from an employee in a performance review is shock. If that happens, then you have failed. Either you’ve failed to provide feedback throughout the year, or quite possibly, you thought you were providing feedback, but you didn’t communicate it in a way that your employee understood. To repeat those illustrious and stirring words I recently saw spread out across a stainless-steel backdrop: Heighten Your Still. [email protected]

Agency Concerned About Telework as Reasonable Accommodation Request: Should It Request More Medical Information?

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By Deborah Hopkins, Ann Boehm, and Bob Woods, September 1, 2020

Here’s a hypothetical reasonable accommodation case to consider:

An employee requests telework due to a medical condition, specifically because of the side effects of the medication being taken for the medical condition. The medical information provided by the health care provider states that the medication being taken causes sleepiness and precludes the employee from driving. Can additional clarification be requested from the employee’s healthcare provider to ensure that the medication being taken by the employee will not affect his ability to perform his essential functions, specifically to handle potentially private information, including personally identifiable information (PII)?

We sure love hypotheticals. Because FELTG is a training company, we can’t give specific legal advice about this scenario. But your authors got together (well, virtually anyway) to discuss some things the agency should probably consider.

 

The telework request

Sometimes, folks overthink these situations too much. In this time of pandemic, thousands more employees are working from home. It’s still the same work with the same duties and responsibilities, just in a different environment. The employee is responsible for properly safeguarding PII at work, so that’s still a requirement at home. Is the agency allowing other similar employees to work from home? If so, how do THEY safeguard PII? If this employee fails to safeguard PII, the agency should deal with it when it occurs and take appropriate action to hold the employee accountable.

In cases like the hypothetical above, supervisors are often concerned that they can’t keep an eye on the employee to make sure they’re getting their work done and aren’t malingering. There are ways to deal with such concerns. For example, while teleworking, the supervisor can assign projects with specific deadlines or require periodic updates by phone or email. They can also have Zoom or Skype meetings, etc. They just need to think through how they monitor work while in the office and then try to replicate that as well as possible in the virtual environment. If the employee’s production decreases or the employee doesn’t respond in a timely fashion to phone and/or email, then the supervisor just deals with that like they should in the normal workplace (i.e., follow FELTG’s performance cases outline to hold the employee accountable).

The medical request

We know from EEOC cases that assuming or speculating that a certain disability will result in a particular behavior, without any evidence or history of such behavior, can get agencies in trouble. See, e.g., Matilde M. v. SSA, EEOC Appeal No. 0120140147 (Jan.17, 2017); Smith v. Navy, EEOC Appeal No. 01A40794 (June 8, 2006); Lamb v. SSA, EEOC Appeal No. 0120103232 (Mar. 21, 2012).

In our hypothetical, drowsiness as it relates to driving is the reason for the telework reasonable accommodation request. An agency should be very careful not to read into something for which there is no evidence. Drowsiness or sleepiness does not automatically suggest other issues. (In fact, all of your authors have been groggy on the job a time or two.) Grogginess does not automatically mean an employee cannot do the job, and without a direct link to the essential functions – for example, operating machinery or driving – it can be risky to assume one cannot. Lots of medications warn against driving, but that’s a different cognitive need than getting certain types of work done.

Agencies can ask for medical information to substantiate the need for accommodation, and to help understand the functional limitations. If the agency in the hypothetical above accepted the medical information as written (employee needs to telework because they can’t drive due to the effects of medication), granted telework, and the accommodation is working and there are no problems with the employee’s performance or conduct, then why would the agency need additional medical information about the performance of essential functions based on the driving restriction alone?

The bottom line

Telework can be an effective and reasonable accommodation. Whether it’s being permitted as an accommodation or just as a workplace flexibility, supervisors need to determine how they are going to assign and monitor work and how the teleworker will maintain security and PII.

Remember, it’s the same work, just a different location. As for requesting medical information regarding an accommodation, stay focused on the critical elements of the job. Remember, an accommodation is provided to enable the employee to perform the essential elements of the job. If necessary, the employer may request the medical practitioner to answer the following:

  • Nature, severity, and duration of disability;
  • Explanation of impact of disability on and off the job;
  • Extent to which impairment(s) limit ability to perform functions of job;
  • Estimated date of full or partial recovery;
  • Medical professional’s assessment of individual’s ability to successfully perform essential functions of position;
  • Explanation as to how the particular accommodation will assist individual in performing essential functions of position.

We’ll be discussing challenges related to unseen disabilities in more detail on September 8 during the virtual training program Accommodating and Understanding Employees with Hidden Disabilities, and we also have an entire virtual class dedicated to handling employee medical information during Absence, Leave Abuse & Medical Issues Week, September 28-October 2. If reasonable accommodation requests are something you deal with, you will definitely want to join us. [email protected]

Refuse, Report, Resign? Well, Two Out of Three Ain’t Bad

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By William Wiley, August 19, 2020

We’ve been seeing a lot in the national media lately about civil servants as whistleblowers. Some groups hate them, some groups love them. Unfortunately, neither group always understands the federal whistleblower protection laws. That can work to the whistleblower’s significant disadvantage, especially when an apparently pro-whistleblower piece of advice can result in an unspoken disadvantage for the whistleblower.

Take the advice as to what a federal employee should do when ordered to do something illegal – say, hypothetically, to initiate a governmental action to serve a partisan political purpose rather than a valid governmental purpose. The lovely alliterative phrase I’ve heard recently is that when an illegal order is given, the employee should Refuse, Report, (and, if necessary) Resign. If you find yourself in the position of being ordered to take an illegal governmental action, and you’re considering whether to follow this Three-R recommendation, please think twice.

First, the good news. After Congress passed the Civil Service Reform Act of 1978, it subsequently amended the law to make it illegal for an agency to fire an employee for “refusing to obey an order that would require the individual to violate a law, rule, or regulation,” 5 USC 2302(b)(9)(D). We’ve previously written in this newsletter about the challenges a federal employee faces when confronted with an order requiring illegal activity.

Bottom line: If you are fired for refusing to obey an order, and the judge agrees with you that the order required you to do something illegal, then you get your job back (plus damages and the all-important attorney fees). So, the “Refuse” rationale makes sense legally.

As for the “Report” admonition, that’s protected activity, as well. We call that “whistleblowing.” Reprisal against a federal employee for blowing the whistle on governmental illegality has been protected (at least in part) since the Lloyd-LaFollette Act of 1912. The “Report” recommendation also makes sense if one is interested in stopping government malfeasance.

Which brings us to the third suggested action. When confronted with being ordered to take an illegal action, in addition to Refusing and Reporting the order, a federal employee should, if necessary, “Resign.” Lordy, that would feel good, wouldn’t it? Throw yourself on the hand grenade. Take one for the Gipper. It’s how heroes are made, isn’t it? Altruistic sacrifice to benefit the greater good. Mr. Spock would be proud (“The needs of the many outweigh the needs of the few” … that sort of thing).

If you as a whistleblower were to resign when confronted with an order to do something illegal, you might well find that a degree of fame comes along with your act of selflessness. The Washington Post might run a piece or two about your bravery (full disclosure, Jeff Bezos does not own the FELTG Newsletter), MSNBC might book you on Rachel or Lawrence, and some extreme-media outlets might interview every ex-boyfriend or girlfriend you ever dumped who still blames you for their inability to develop deep personal relationships.

And then … what? You’re out of a job. You’re hungry, the rent’s due, and baby needs a new pair of shoes. The publicity surrounding the circumstances under which you resigned from government has morphed into a degree of notoriety, at least in the eyes of certain prospective employers. You’re still convinced that you did the right thing by refusing the illegal order and reporting the government malfeasance, but you sure would like to pay your bills next month.

Fortunately, you have been to an FELTG class on employee rights and know that there are statutory protections for federal employees who are whistleblowers. However, when you read the law, you recognize that it specifically prohibits a federal agency from taking a personnel action because of an employee’s whistle blow. In your situation, the agency did not take an action. YOU took the action when you quit. Therefore, the refusal-to-obey protections of 5 USC 2302(b)(9)(D) do you little good.

Then, over a beer one night at your local watering hole, you come to find out that the guy next to you at the bar (six feet away, of course) is a federal employment lawyer. Hey, it IS Washington, DC after all. Try to find a bar that does NOT have at least one lawyer in it. He tells you that you may be the victim of a “constructive removal” and that you might have a case before something called the “US Merit Protection Systems Board.”

OK, he’s not a GREAT employment lawyer.

Anyway, long story short. You file an appeal with MSPB, and you lose. That’s because many years of caselaw, backed up by almost as many court decisions, have supported the two-part principle regarding claims of constructive removal. First, resignations are presumed to be voluntary and thereby non-appealable. Second, this presumption of voluntariness can be overcome by the individual on appeal if the appellant can prove that the resignation was the result of intolerable working conditions which could not be resolved otherwise.

Do we have intolerable working conditions in your situation? No, not necessarily. It all depends on how management responded to the refusal to obey the illegal order and the subsequent whistleblowing. Maybe your supervisors just blew it off. Or, maybe they got somebody else to do the job instead of trying to force you to obey.  Your being offended by the order itself, no matter how justified, standing alone, has never been found to constitute the creation of working conditions so intolerable as to justify your quitting; e.g., a constructive removal.

Instead of resigning, from a strictly defensible legal standpoint, the better R-option to consider would be to “Redress.” Not resist because you disagree with a particular policy of upper management, but rather resist any efforts on the part of management to fire you for refusing to obey that illegal order. You have significant redress rights as a federal civil servant if you are fired. Most federal employees who are reprised against for refusing to obey an illegal order can file a complaint with the US Office of Special Counsel. That agency can intervene in the removal process itself, perhaps obtaining a stay of the proposed removal before it is effectuated.

Separately from OSC, a fired career Title V employee almost always has a right to file an appeal with MSPB, with a discovery entitlement, a hearing and decision before an administrative judge, and three layers of appeals of that decision goes all the way to the Supremes.

This approach avoids the troublesome legal hurdles of the appeal of a claimed constructive removal. Instead, your claim is that the agency violated 5 USC 2302(b)(9)(D) when it fired you because you refused to obey an order that would have required you to commit an illegal act. That’s a significantly easier bar to clear than would be your burden to prove intolerable working conditions.

Personally, I have to admire someone who gives up a good federal job to put a public spotlight on significate government malfeasance. Unfortunately, my admiration does not put dinner on that former employee’s table. Plus, I’ll no doubt be onto the next political outrage within a few days while that individual is still trying to get through to the unemployment benefits office to file a claim. If you feel the need to Refuse and Report a supervisor’s order that is motivated by illegal purposes, you are doing what our whistleblower laws (and most of our society) expect you to do. However, when it comes to the third step, consider Redressing instead of Resigning. The same number of talk show producers will give you a call. You can stick a pin in that.

Watch this space. [email protected]