Ripped from the Headlines: A Case for Today’s World

, ,

By Barbara Haga, August 19, 2020

This month I am going to leave COVID issues and turn to another topic that is also very timely. This one is about an employee making disparaging remarks that were racial in nature to and about other employees.  This case was included in last week’s MSPB case report.  I am exaggerating a bit when I say “ripped from the headlines” since you would have to have seen the weekly Board report to find this, but this type of bad behavior in the workplace is exactly the kind of thing that could make the news if the press picked up on it. I can just see it – High-level FAA Manager Fired for Racist Texts.  The case stems from a report of misconduct made in 2017 followed by a removal in March 2018. The employee appealed to the Federal Circuit after the MSPB AJ upheld the removal.

The case is Jenkins v. Department of Transportation, No. 2019-2075 [PDF] (Fed. Cir. Aug. 6, 2020). Cara Jenkins was the Chief of Staff to the FAA’s Associate Administrator for Human Resources. I did a bit of checking on what her position was and found her listed as Assistant Administrator for Human Resources on their HR website. That position is head of human resources for all of FAA’s 45,000 employees.  While the title is not an exact match, it looks like that may have been the position Jenkins was supporting, because her pay level, according to Federalpay.org was “among the highest-paid 10 percent of employees in the Federal Aviation Administration.”

The decision notes that she had been employed for nearly 30 years and held the Chief of Staff position for one year prior to her removal. Jenkins, in addition to being part of the work of the human resources organization, was also a supervisor.

The charges contained in the proposed removal included (1) inappropriate conduct, (2) making disparaging remarks racial in nature, and (3) lack of candor.

The Misconduct 

Jenkins sent a lot of inappropriate text messages. In fact, the removal notice included 18 specifications under charge 1 and 22 under charge 2.  Each specification was a separate text message that negatively referenced one or more colleagues or contained a racial comment about a colleague. Jenkins sent these messages to at least two subordinates. The decision states:

In 2017, one of Jenkins’s subordinates, Sharon Bartley, complained to the FAA Accountability Board that Jenkins had created a hostile work environment. In support of her complaint, Bartley provided the Accountability Board with a number of personal cell phone text message exchanges that she had with Jenkins. Many of the text messages were disparaging toward Jenkins’s colleagues, including senior officials at the FAA. Moreover, many of the messages contained derogatory comments about the race and gender of Jenkins’s colleagues.

During the investigation, another employee (apparently a contract employee), Lavada Strickland, provided copies of text messages she had received that were of a similar nature.

Jenkins was interviewed about text messages she had sent to Bartley. She denied sending them, saying “I do not admit to the validity of these messages … They are allegedly from [a] phone identified as ‘Cara’ with no phone number … I am not saying I did not send them but that I simply do not remember sending some of them.”

However, she apparently gave consent for search of her phone because the investigator exported texts she had sent and that is noted in the investigative report. I can only surmise that she gave consent for that search, since all of the cited messages were sent using personal cell phones and no government resources, as Jenkins later argued in her defense.

The Federal Circuit decision does not quote the racial remarks included in the texts, but they do mention specifics from some of the texts included in the lack of candor charge.  In several sections of the decision, the Federal Circuit mentioned that Jenkins sent texts wherein she described other human resources employees as “… backstabbers, dumb and that they did not know how to do their jobs.”

One of the employees interviewed stated that her supervisor “really had me believing a lot of things about people in HR/Leadership.”  As noted in the decision notice, Jenkin’s misconduct “… undermined the credibility and managerial authority of senior officials at the FAA.”

Jenkins’ Arguments

Jenkins’ arguments at the Federal Circuit did not convince the Court that her removal was not warranted. Two of the arguments were that the FAA had not proven lack of candor and that the penalty was too harsh. Neither succeeded.

The other argument is important for cases like this.  She argued that there was no nexus. The decision explains the reasoning that nexus was proven:

Jenkins also argues that there is no nexus because her comments “were intended to be and were private using personal cell phones and no government resources.” Appellant Br. 29. Jenkins contends that “private off-duty speech is not intended to be the government’s business” and “searching private speech for statements potentially subject to discipline is beyond the government’s reach.” Appellant Br. 38. But this is not a case in which the Agency violated Jenkins’s right to privacy or free speech by illegally searching Jenkins’s private communications for disciplinable conduct. The offending text messages were provided to the Agency by its employees, Bartley and Strickland, in connection with the Agency’s investigation into a complaint about a hostile work environment. Once Jenkins’s misconduct and its effect on the work environment became known to the Agency, there was no law, rule, or regulation that prevented the Agency from addressing the misconduct merely because Jenkins used a personal phone to send messages that she “intended” to be private.

Summary

How can someone who harbors the sentiments that Jenkins expressed rise to the level she did in any Federal agency and manage not to have exposed those beliefs somewhere before? One of Jenkins’ arguments regarding the penalty included that she had a clean record, so no one had officially taken her to task over such behavior in any significant way that remained in her OPF.

Part of what struck me about this case was how closely it followed on the heels of something similar that happened with a broadcast on Facebook. The story reported on June 7 involved retired Navy Captain Scott Bethmann who accidentally broadcast about 30 minutes of his and his wife’s racist diatribe.  He is a Naval Academy graduate and apparently served successfully for a full-term military career.  What is so shocking to me is how he served so long without showing his true colors.

I heard third hand that an African American officer who had served under Bethmann said that he never saw it.  He never had any clue from anything Bethmann said or did that he (Bethmann) believed the things that he said during the Facebook broadcast.

I understand that racism can be hidden and subtle, but how is someone enough of an actor to pull off a 20- or 30-year career and never slip up in front of someone willing to take the issue on?  Or, is the problem that others in positions of authority do see it, but they don’t think they can discipline since there was no overt action, or, frighteningly, they agree?  I can’t solve the second part, but at least you now have a recent case that describes when a removal action was supported.  It’s a small thing in the big picture, but hopefully a step in the right direction.

Blaming the Victim, Or How Not to Respond to a Complaint

, ,

By Meghan Droste, August 19, 2020

While preparing slides for a webinar on involving race, national origin, and religious discrimination, I came across a 2015 Commission decision that is too surprising not to share, even though it doesn’t fit my usual criteria of being a recent decision.  The ultimate outcome of the decision is not a surprise (Spoiler Alert: It did not end in the Agency’s favor), but the Agency’s approach to the entire situation is.

Complainant v. Tennessee Valley Authority, EEOC App. No. 0120123132 (May 14, 2015), involves one of the most invidious forms of race discrimination — a noose in the workplace.  As the Commission recounts, the complainant first observed a noose hanging in the back of an agency vehicle on August 5.  He brought it to the attention to the two coworkers who were in the truck at the time.  Apparently neither of them did anything about it because on August 11, the complainant saw the noose again in the back of the same truck.  He told his supervisor, who responded by informing him that the noose wasn’t a “legal” noose because it only had seven knots instead of 13.

Dissatisfied with this (lack of a) response, the complainant told the yard operations supervisor about the noose. This supervisor showed the noose to four other employees, but remarkably no one removed the noose from the truck. The noose remained up for four more days. On August 19, the complainant’s supervisor read the agency’s anti-harassment policy to the yard staff during a meeting but did not make any reference to the noose or address the issue.  On August 22, a member of management alerted agency security officers about the noose. Officers waited until September, more than a month after the complainant first observed the noose, to begin an investigation.  At some point during this time, the agency issued a write-up to the complainant, admonishing him for not reporting the noose sooner.

As you can expect, the Commission reversed the agency’s FAD which found no discrimination.  In the appeal, the agency argued that it was not liable because it had taken prompt and effective corrective action when it became aware of the noose. The Commission soundly rejected this.  Nothing about the agency’s response was prompt or effective:

  • The agency allowed the noose to remain up for 10 days after the complainant first reported it.
  • The complainant’s supervisor responded to the seeing the noose by declaring it not a “legal” noose.
  • The agency did not address the noose or the seriousness of the issue during the staff meeting.
  • The agency made no effort to investigate the origins of the noose until a month after the complainant reported it.
  • And, of course, the agency disciplined only the complainant and not any of the supervisors who were aware of the noose and failed to take action.

It is hard to imagine any other ways in which the agency could have mishandled this incident.  The only good that I can see from this is that we can all look to this as an example of everything an agency should not do when confronted with harassment. [email protected]

Can Delaying Discipline Cause EEO Liability for an Agency?

, ,

By Deborah Hopkins, August 19, 2020

On the MSPB side of federal employment law, FELTG has long held the stance that agencies should take disciplinary actions as soon as is practicable after a federal employee engages in misconduct. The longer an agency waits, the less justification the agency will have of the “harm” the employee caused, and the more unreasonable its penalty begins to look.

Take a look at Eotvos (pro se) v. Army, CH-0752-17-0355-I-1 (2018)(ID). In this case, the employee solicited a minor for sex and the agency removed him. The AJ reversed the removal because the appellant disproved the rebuttable presumption of nexus by highlighting the following details:

  • There was no proof of publicity about the event.
  • There was no customer knowledge; the agency had no minors as customers.
  • His coworkers did not care about his conduct.
  • His work performance remained good.
  • The agency waited 5-plus months to fire him.

While Eotvos is “just” an administrative judge’s decision and has no precedential value, it illustrates the importance of timing. When an agency fires someone for misconduct it states as egregious, but then waits nearly half a year to take the action, a third party may begin to question how “bad” the misconduct really was if the employee wasn’t removed immediately.

The longer you wait, the more precarious your position, unless you have a darn good reason for the delay.

For precedential MSPB decisions on the topic take a look at Baldwin v. VA, 2008 MSPB 169 (If an agency’s delay in charging discipline is unreasonable, the charges may be dismissed), or Brown v. Treasury, 61 MSPR 484 (April 7, 1994) (In cases where there is not an explanation for the delay, the Board will consider how serious the agency actually considered the misconduct and may mitigate the penalty if it believes the delay undermines the argument for harm).

Every now and then this important principle of “discipline early and often” finds its way into an EEOC case. Take, for example, Sharon M. v. Dep’t of Transp., EEOC Appeal No. 0120180192 (Sept. 25, 2019). In this case, the complainant, an Air Traffic Control Specialist, received an email from a coworker that contained a racial slur (an abbreviation of the n-word).

The agency initiated an investigation and found that the coworker did indeed used an inappropriate racial slur, and that such behavior violated its code of conduct, so the agency told the complainant that her coworker would be suspended for 30 days. The conduct did not occur again.

Sounds good, right? The agency did an investigation, took corrective action, and the conduct didn’t happen again. So, we’re good to go?

Not quite. Although the agency took corrective action, the EEOC found that the action was not “prompt” and, therefore, the agency was not absolved of liability. Why? The agency waited six months to discipline the coworker who used the n-word. Take a look at some language from the body of decision:

…[T]he Agency is responsible for the hostile work environment unless it shows it took immediate and effective corrective action. Although the Agency took effective corrective action, upon review, we find that the Agency’s action was not prompt. We note that the record clearly indicated that the investigation occurred in early December 2016… The Agency did not state how long the internal investigation took and failed to provide a copy of the internal investigation in the ROI for the Commission to determine how long the Agency investigated the matter…

The proposed 30-day suspension was not received by [the coworker] until May 16, 2017, nearly a month after it was allegedly drafted. There is no reason given for the delay. In addition, it appears that the Agency took over six months to issue the proposed disciplinary action. Based on the events of this case, we find that six months is not prompt. See Isidro A. v. U.S. Postal Serv., EEOC Appeal No. 0120182263 (Oct. 16, 2018) (finding that the Agency failed to take prompt and effective action when it investigated a single utterance of the word [n-word] in the workplace on July 15, 2017 and issued disciplinary action on November 21, 2017). As such, we conclude the Agency failed to take prompt action after learning of the harassment. Because the Agency failed to meet its affirmative defense burden, we find that it is liable.

In most cases similar to Sharon M., we see agencies lose because they did not investigate promptly or did not put effective corrective action into place, but here the delay in taking prompt corrective action is what caused the loss.

While a delay is not always the death knell for a disciplinary action (check out my 2019 article on laches here), I hope you see now that it can be, both on the MSPB and EEOC sides of an issue.

And if you join us for MSPB Law Week, next offered virtually September 21-15, we’ll discuss all these things and a whole lot more. [email protected]

The Good News: Now’s a Good Time to Work on Your Pandemic To-Do List

, ,

By Ann Boehm, August 19, 2020

Here we are, in Month Six of the COVID-19 Pandemic, and not much has changed. Many of you are still teleworking. Some are gradually returning to the workplace. Some of you never left the workplace. Regardless of your status, there’s no doubt that the day-to-day existence of your job is different and likely will stay different for a while. That’s why I think it’s a good time to work on a to do list that is specifically focused on the oddities of working through a pandemic. So here goes:

1 – Get moving on performance and disciplinary actions, and investigations. When the virus hit and people were suddenly told not to come to work, many agencies put any performance and disciplinary actions on hold. Same for investigations. The logical thinking was that everyone would be back to work pretty soon, so why not wait until then to move on serious personnel matters. Now we realize that “pretty soon” is still not happening. It’s a bit odd to serve a proposed removal virtually, I realize, but there’s nothing illegal about it. Employees who want an oral reply can do so virtually. And decisions should certainly be issued sooner rather than later. It may seem unkind to remove an employee during the pandemic, but leaving a proposal hanging for too long is hard on everyone – the employee, the supervisor, and the co-workers. Investigations may be different in the virtual world, but technology will allow you to interview people and review documents. We don’t know when this will end, so don’t keep putting things off.

2 – Assess what’s working and what’s not in the virtual world. It’s very possible that the virtual world is making your workers more efficient. Or it may have negatively impacted your office’s ability to perform its mission. It is important for you to do an honest assessment of what is working and what is not. You may have a whole new appreciation for teleworking if you see that your workers are more efficient. And if you demonstrate that some mission requirements just cannot be done virtually, you will be better able to determine which employees need to return to the workplace. The key is to be honest.

3 – Review performance plans. Pandemic or not, employees are still expected to perform. That being said, you need to review the critical elements in your employees’ performance plans to determine whether they are accurate expectations during the pandemic. You may need to do some tweaking to reflect the reality of telework or safety issues.

4 – Be aware of your agency’s return-to-work policies and make sure your employees know about them. CDC guidance. Agency guidance. Department guidance. The safety requirements for returning to work will include things like temperature taking, sanitizing, and of course, the controversial wearing of masks. Find out what policies are out there. Read them. And make sure your employees receive them.

5- If you supervise bargaining unit employees, read what the national unions have said about return to work. The national unions are insisting on strict workplace safety protocols. AFGE, for example, has a list of 10 return-to-work principles posted on its website. It’s important to know what the national unions are saying so that you can work effectively with the local bargaining units to ensure all employees are complying with workplace safety protocols.

6 – Develop a plan for how to handle employees who do not comply with safety protocols. You can pretty much plan on some employees not wanting to wear a mask. Or they may not wear them properly. What are you going to do when that occurs? Figure out a plan. Warnings will probably be a wise first step. And you may need to take disciplinary actions. No one said this would be easy, folks.

7 – Take advantage of any spare time you have and read agency policies you may not have read for a while (like Leave, Misconduct, Investigations, Performance). When I conduct training, I like to remind supervisors, and HR specialists, and counsel to read agency policies. Too often we get complacent and forget to review the policies we think we know so well. If you are still teleworking, use downtime to look over some of the agency policies most relevant to what you do.

8 – Read the OPM guidance on COVID-19 Leave. The Families First Coronavirus Response Act created a new type of leave that is specific to COVID-19. OPM issued detailed guidance about the leave. Your agency may have provided supplemental guidance. You are going to have employees who get COVID-19. You will have employees who need to be quarantined due to exposure to someone with COVID-19. Get ahead of this by reading available guidance on how to handle employee leave if any of this occurs.

9 – Talk to your employees and find out how they feel about their current work situation and return to work. One of the most surprising things to me about the pandemic is how wrong I have been in predicting other people’s perception of danger during the pandemic. Some people who I thought would be very worried are not worried at all, and others I figured would be happy-go-lucky are terrified. You really cannot guess how anyone is feeling about their own personal risks and family member risks. We can assume, based upon what I read in the media, that most people are very concerned about the safety of being at work. It’s important that you find out how your employees feel about returning to the workplace. They may need to come to work despite their fears, but at least you will know in advance about their worries and be better able to manage the situation.

10 – Talk to your supervisor about your concerns and make sure you understand what’s expected of you as the pandemic continues. Pretty much everyone except the President has a supervisor. Our training focuses mostly on how supervisors interact with the employees who work for them. But it’s also important for supervisors to talk to their supervisors about their feelings during the pandemic. Don’t operate in a vacuum. [email protected]

Yellow Donuts, Unnecessary Shopping Trips, FELTG, OPM and Accountability

, ,

By Dan Gephart, August 19, 2020

Please don’t tell my wife this, but she’s almost always right when we debate the best way to get something done. Here’s an example: I realize we’re out of bananas, just as I’m preparing a smoothie. So as I grab my car keys, I holler: “I’m running to the supermarket to get bananas.” She replies: “Don’t we need lightbulbs for the kitchen, too, and batteries for the remote? And while you’re out, what about dropping off the bag of food at …”

I don’t hear that last part because I’m out the door. I have one mission: Getting bananas. I want a smoothie. Why worry about that other stuff? But later that night when I go to turn on the kitchen lights and the last remaining bulb remains dark, I get the look. I storm out of the kitchen and turn on the TV. Click. Click. Nothing. Remote needs new batteries. And then I hear: “You know, you could’ve saved yourself time while you were out …”

She’s right and she understands efficiency. Take the right steps now to make your life easier in the long run. Why make three separate trips to three stores in the same vicinity, when you can do it all in one trip?

We preach a lot about efficiency here at FELTG. I mean A LOT. It’s what we do. But instead of unnecessary car trips, we help rid supervisors of unnecessary actions when it comes to handling performance and conduct issues.

Let’s face it: Life as a federal supervisor, particularly during a pandemic, is quite difficult. Why make it harder?

My favorite slide that you’ll find in many of FELTG’s materials is what we endearingly refer to as the “dreaded yellow donut.”

Read about the concept of the yellow donut here. Basically, the donut is a reminder to take the minimum steps in performance and conduct actions. The more unnecessary steps you take, the harder it gets, the longer it takes – and the more likely you are to make a mistake.

As we found out in my interview with Dennis Dean Kirk last week, OPM’s Employee Services Team wants to make sure federal supervisors are appropriately “equipped to address performance and conduct issues.” (Sidenote: Oh, how I wish I was interviewing Mr. Kirk about his experiences as a new MSPB member.)

As baseball announcer Mel Allen used to say: How about that? It’s not just a FELTG thing. It’s an OPM thing, too. So go out and grab a donut (and anything else you need while you’re out), then register for the FELTG flagship program UnCivil Servant: Holding Employees Accountable for Performance and Conduct, which will be held virtually on September 9-10 from 12:30 pm – 4 pm ET.

Or if you’re an HR Director, team leader. or attorney advisor, and you want to reach a larger group of supervisors, bring UnCivil Servant: Holding Employees Accountable for Performance and Conduct to your office virtually or onsite. Don’t do it because it’s a FELTG thing, or an OPM thing. Do it because it’s the right thing. [email protected]

Tips from the Other Side: What’s Acceptable During a Pandemic

, ,

By Meghan Droste, August 19, 2020

Last month, the return-to-work efforts at several federal agencies made the news, with employees and some members of the Senate expressing concerns about the safety of these plans.  With the ongoing risks of the coronavirus still present across the country, there will be some significant changes for those employees who transition back to their offices in the coming months. Because we are still in the midst of a pandemic, some of the rules regarding medical exams and medical information are a bit different than usual. I highlighted below some key guidance from the EEOC on what is and what is not acceptable during this time:

  • Agencies may ask employees if they are experiencing symptoms of COVID-19. Normally an employer is not permitted to ask employees if they are sick, but the rules are different during a pandemic. If employees will be in the workplace, agencies may ask if they are currently experiencing the recognized symptoms such as fever, chills, a cough, shortness of breath, and a sore throat. The Commission advises that employers continue to check the CDC’s guidance to stay current on what the known symptoms are. Agencies should also remember that some people with an active infection will be asymptomatic.
  • Agencies may check employees’ temperatures. Temperature checks are medical exams so employers cannot usually require all employees to submit to them before entering the workplace. The pandemic changes things. As long as a fever remains a recognized symptom (something that seems unlikely to change), employers may require temperature checks. But again, the Commission reminds us that not everyone who has COVID-19 will have a fever.
  • An agency may require employees to take a COVID-19 test and provide the results to the agency. While agencies may require COVID-19 tests because the virus poses a direct threat to others in the workplace, agencies may not require employees to undergo antibody testing. The Commission has specifically stated that antibody tests, which do not provide information about an active infection, do not meet the job-related and consistent with business necessity standard.
  • Agencies may order symptomatic employees to go home. An agency may direct an employee who is displaying any of the recognized symptoms of COVID-19 to go home and may require a doctor’s certification before allowing the employee to return. As the Commissions notes, employers should remember that employees may experience significant delays in receiving test results or being able to see a doctor during this time.
  • Agencies may delay start dates for new employees who have COVID-19 symptoms. An agency may also withdraw a job offer if there is a need for the applicant to start immediately and it is not possible to wait the required quarantine period before the applicant enters the workplace. An agency should not, however, delay or withdraw an offer for an asymptomatic applicant who will start working remotely and not report to a duty station.
  • Agencies may not delay a start date or withdraw a job offer simply because an applicant is in a high-risk category. If an applicant in a high-risk category is willing to enter the workplace and has no symptoms, there is no justification to delay a start date or withdraw an offer. Doing so could result in a finding of discrimination based on sex, age, or disability, depending on the specific applicant’s protected category.

For those of you who will be returning to work soon, I wish you good luck and good health.  And for everyone else who will be moving into their sixth month of remote work soon, stay strong! [email protected]

And Now a Word With … Dennis Dean Kirk

,

By Dan Gephart, FELTG Training Director, August 11, 2020

I really had hoped and expected that when we conducted an interview with Dennis Dean Kirk, it would be to discuss his new role as Chairman of the Merit Systems Protection Board. As the FELTG Nation knows, President Trump nominated Mr. Kirk more than two years ago for one of the three open spots on the Board. Those three spots remain open because the Senate has not scheduled a vote, and the likelihood of us getting an actual Board anytime soon is, to quote the person who made the nomination: #Sad!

But Mr. Kirk isn’t just sitting around waiting to hear from the Senate. Since being named the Office of Personnel Management’s Associate Director of Employee Services earlier this year, Mr. Kirk has dived deep into his role of developing and administering policy on issues as wide ranging as pay, labor relations, performance management, and more. And now Mr. Kirk and his Employee Services team are focused on implementing President Trump’s executive orders and ensuring that all federal supervisors are appropriately “equipped to address performance and conduct issues.”

As you can imagine, the FELTG team is very interested in Mr. Kirk’s current work. We’ve been providing specific useful guidance on the aforementioned EOs in training since the day after they were signed. And equipping supervisors to address performance and conduct, well that’s kind of our thing. So we’re thrilled to see OPM prioritizing supervisory training and we thought it important that you knew what was going on. So we reached out to OPM and sent our questions to Mr. Kirk. What follows is that Q&A.

DG: Could you tell us briefly about the team you have in place at Employee Services and the priorities you have been working on?

DDK: Our team is a mix of highly qualified and seasoned civil servants and senior political appointees who are experts in their fields. Appointees help lead the department and ensure that our priorities are aligned with the Trump Administration’s policy objectives.

Our top priority is assisting agencies in implementing President Trump’s three workforce Executive Orders on employee removals, collective bargaining, and official time. These Executive Orders have tasked agencies to renegotiate collective bargaining agreements to bring them in line with the provisions of the Executive Orders, understand and record the amount of official time that is being billed to the taxpayers within their agency, and rein in extra-statutory impediments to maintaining accountability within their organizations. As a result of the data collected from these efforts, OPM is creating reports on the use of official time, collecting and publishing collective bargaining agreements, developing model collecting bargaining agreement language with the help of the Labor Relations Group, and creating training materials to help managers understand how and when to take adverse actions.

Over the past four decades, the cost of higher education has risen dramatically. In 1978, the average expense of one academic year at a four-year in-state public college was $8,250 in inflation-adjusted U.S. dollars. Today, one year at the same college would cost $21,370 on average. This trend makes the widespread reliance on educational requirements by employers an ever-steeper hurdle to gainful employment for many Americans. For example, among U.S. workers over the age of 25, 26 percent of blacks – as compared to 40 percent of whites – have at least a bachelor’s degree.

President Trump believes that regardless of whether an individual had the ability to pay for a college education, they should have an opportunity to demonstrate whether they have the capacity to perform the duties of a job. The Office of Personnel Management is also implementing the President’s Executive Order on Modernizing and Reforming the Assessment and Hiring of Federal Job Candidates issued this summer to open up the Federal hiring process to job seekers with a much wider set of experiences. This Executive Order requires that agencies develop and offer competency-based assessments – as distinct from self-assessments – for every job advertised in the competitive service. It also specifies that, unless a certain level of education is required for licensure in a certain field, educational attainment cannot be used to bar someone from taking an assessment.

We are setting up listening sessions between private businesses – both large and small – and Acting Director Michael Rigas and our team at OPM to learn from the innovative ways these companies are identifying talent using assessments rather than relying on college degrees. OPM is also supporting the Federal HR community to help them meet the demands of the Executive Order and reviewing our guidelines and policies to assure that education is not used as a barrier to entry.

DG: OPM shared an employee engagement toolkit with agencies earlier this year. What was the goal of that toolkit?

DDK: In October of 2018, OPM issued government-wide guidance and reporting requirements on two President’s Management Agenda milestones. To support agencies with achieving these milestones, OPM developed the employee engagement toolkit for supervisors.The two milestones were the “Workforce of the 21st Century” Cross-Agency Priority Goal, Subgoal 1:”

  1. All major components/bureaus will identify its bottom 20% on the 2018 Federal Employee Viewpoint Survey (FEVS) Employee Engagement Index (EEI) and target a 20% improvement in those units by the end of 2020.
  2. All agencies will have clear standard operating procedures for disseminating the Federal Employee Viewpoint Survey (FEVS) data to all organizational levels

DG: Have you received any feedback on the toolkit?

DDK: OPM has received positive comments from agencies expressing the value of the toolkit. Several agencies have informed OPM they have taken steps to deploy the toolkit within their agency, and they have offered webinars to highlight the toolkit and how to interpret and use FEVS results to improve employee engagement.

DG: While there has been improvement, a majority of employees still responded negatively to the statement on OPM’s Federal Employee Viewpoint Survey: “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve.” Why do you think this is a perennial issue and what can be done to fix it?

DDK: This is why we are making the implementation of the President’s three Executive Orders on accountability and labor relations a top priority. When President Donald Trump issued three executive orders that made it easier to fire poorly performing government employees, the backlash from public-sector unions was fierce. Union leaders did not like it—one called it an “assault on federal employees.” But a poll following the signature of these Executive Orders found that the majority of government workers— 51 percent —support the Administration’s efforts.

Moreover, only 24 percent of Federal employees oppose the recent executive orders, and another quarter are unsure. Some federal employees no doubt take advantage of their insulation from accountability, but most civil servants are hard-working and dedicated — a fact attested to by the 70 percent customer satisfaction rate among those who receive some federal service. The diligent federal workers must pick up the slack for those who do not do their share, only to sometimes be denied opportunities for advancement by the dead weight above them. And, as anyone who has worked in an office environment knows, unmotivated and unruly co-workers can take a heavy toll on morale. So, although a few bad apples may prefer to keep the status quo, it is not surprising most federal employees welcome these provisions of the President’s Executive Orders.

DG: What do you see as the main reason some training is not effective? 

DDK: Over the years and through extensive research, OPM has learned the value of shifting from traditional classroom-based learning to experiential and social learning activities. With experiential and social learning activities, approximately 70 percent of learning takes place on-the-job; 20 percent of learning results from meaningful relationships and coaching; and 10 percent of learning occurs through formal classroom training. OPM’s research also suggests that this approach to employee training is more situated in the context of an employee’s work, providing cost savings opportunities to build and demonstrate the competencies needed for success.

DG: What is the skill you’d most like to see supervisors improve upon over the next year?

DDK: OPM supports Federal agencies to ensure all supervisors develop critical leadership competencies within the first year of appointment and are appropriately trained on performance management, as well as addressing performance and conduct issues.

Additionally, OPM is committed to providing supervisors with best practices, guidance, training, and forums with a focus on employee experience, performance, and continual learning. We also emphasize the importance of succession planning in support of talent management from entry to leadership level.

DG: What is the most critical skill you’d like to see HR improve upon over the next year?

DDK: OPM encourages HR professionals to shift their focus from the traditional functional role to more of a strategic partner within their organization. The Federal Government continually faces unique challenges to meet its mission to effectively serve the American people. HR professionals can support Federal leaders to improve the agility of the workforce, adapt to change, and develop workforce solutions to overcome these challenges.

Editor’s note: FELTG’s flagship course UnCivil Servant: Holding Employees Accountable for Performance and Conduct, is just one of our many training programs that empower federal supervisors to confidently and effectively take legally defensible actions to address poor performance and misconduct, and comply with OPM’s 5 CFR 412.202(b) requirements. We can provide this course specifically for your agency. And we’ll be teaching UnCivil Servant: Holding Employees Accountable for Performance and Conduct virtually as an open enrollment over two half-days on September 9-10. [email protected]

Managing Employees With Narcissistic Personality Traits

,

By Shana Palmieri, August 4, 2020

Do you have an employee who refuses to accept feedback, is always right, monopolizes the conversation and feels entitled to special treatment within your agency? Are these traits creating a challenge for leadership to engage this employee to collaborate with the team to achieve the mission, purpose and goals?

Individuals with these traits often create a struggle for supervisors and leadership within organizations, the struggle can be even more severe if the individual within the leadership position embodies narcissistic personality traits.

Let’s first review: What exactly is Narcissistic Personality Disorder and how prevalent is it in our society?

Narcissistic Personality Disorder

Narcissistic Personality Disorder is noted to be the least studied of the psychiatric disorders. Patients with Narcissistic Personality Disorder are often known for coming to therapeutic treatment ‘by force’ or as a last resort and often do poorly in therapeutic treatment.

The research indicates that the underlying roots of narcissism are often due to negative developmental experiences such as being rejected in childhood, or, in contrast, excessive praise during childhood leading the individual to believe he has exceptional traits.1 A 2009 study found narcissistic personality disorder was a fairly prevalent personality disorder in the United States, occurring at an estimated rate of 6.7%, with rates in men at 7.7% and in women at 4.8%.2

An individual may have traits of the disorder or meet full diagnostic criteria for the disorder. The typical presentation of Narcissistic Personality Disorder includes:3

  • An exaggerated sense of self-importance.
  • A sense of entitlement and a consistent need for excessive admiration.
  • Expectation to be recognized as superior without achievements that indicate the need for recognition.
  • The individual exaggerates his or her achievements, abilities and talents.
  • The individual has a preoccupation and obsession with success, power, beauty, brilliance or being the perfect mate.
  • The individual believes he or she is superior and only desires or agrees to associate with people he or she views as equally special people.
  • The individual tends to monopolize conversations and belittle others who they perceive as inferior.
  • The individual expects to receive special favors for his or her expectations to consistently be met, and for unquestioning compliance in his or her demands and requests.
  • The individual is unable and unwilling to recognize the feelings and needs of others.
  • The individual is both envious of others and also believes others envy them.
  • The individual behaves with arrogance.
  • The individual insists on having and deserving the best of everything.

Likely the most challenging aspect for employers is that individuals with narcissistic traits or narcissistic personality disorder have an incredibly difficult time accepting feedback or criticism. They often have the following reactions:

  • Become irritated, angry or emotionally distressed when they do not get their way or view themselves as not getting special treatment.
  • Are unable to regulate their emotions and struggle to tolerate stressful situations.
  • May react with rage and then direct their anger toward criticizing others and demonstrating their own superiority.
  • Have frequent interpersonal conflict, especially with the individuals who provide the feedback (perceived as criticism).
  • Significant difficulty adapting to change or adjusting their mindset.

Managing and Setting Boundaries

Employees with these traits can be challenging at best to manage within an organization and ultimately may be toxic to the overall success of the organization. Some of the tips below may help minimize the impact these individuals have on your organization.

1. Check yourself. Prior to assuming the individual you are seeking to manage is narcissistic, take a look at yourself and your approach to ensure your management style is not creating a defensive reaction in your employees. Key tip: If you struggle to manage all your employees and think they all have significant pathological personality problems, it may be an appropriate time for self-reflection.

2. Clearly identify your objectives. What are the goals and objectives you need to accomplish to meet the mission of your agency? In which areas is the employee demonstrating an inability to perform? What needs to change in order for the employee to be successful? Attempt to be objective and separate your own emotional reaction to the employee. What specifically do you need the employee to do/change in order for the organization to be successful?

3. Be concrete and clear with expectations. Engage in all conversations with respect and empathy, but stay focused on what needs to change in order for the employee to meet the goals and expectations of the organization.

4. Align with the leadership team on expectations and boundaries. If the employee is able to go above the supervisor’s head and get an exception or special treatment, the situation will be exacerbated and create further toxicity within the organization. The rules and boundaries must be clear, consistent and aligned with the leadership team.

5. Be consistent. The expectations need to be consistent not only for the employee causing the challenging dynamic, but for all employees. Attempt to keep rules, boundaries and expectations consistent across the board with employees to minimize special treatment and favoritism.

6. Follow through on consequences for not meeting expectations. Ensure goals and expectations are being met. If the expectations are not met, follow up promptly.

7. Stay focused. Do not let yourself be swayed by emotion or manipulation. Stay focused on the facts and the key tasks, objections and goals of the organization. Refer back to the facts and make the decision off the facts, not the emotional persuasion of the employee.

8. Remember your role. As a supervisor or leader, your role is to support the mission, purpose and goals to be accomplished. Stay focused on supporting your employees with the key objective being to meet the goals and objectives of the agency, not the personal goals of individual employees.

9. Be willing to part ways. If the employee is unable to collaborate with the team to successfully perform the functions of the job, be willing to part ways. Excellent leaders and supervisors will provide empathetic, respectful and considerate support to their employees to ensure their success. However, they must also understand the appropriate time when an employee has personality traits that are interfering with success of the organization and may need to make the decision to part ways.

Note: Shana will cover personality disorders and several other topics during Managing Employees With Mental Health Challenges During the COVID-19 Pandemic on August 26, 1-4:30 pm ET. [email protected]

1 Mitra, P. (2020, April 15). Narcissistic Personality Disorder. Retrieved July 20, 2020, from https://www.statpearls.com/kb/viewarticle/27055

2 Stinson, F., Dawson, D., Goldstein, R., Chou, S., Huang, B., Smith, S., . . . Grant, B. (2008, July). Prevalence, correlates, disability, and comorbidity of DSM-IV narcissistic personality disorder: Results from the wave 2 national epidemiologic survey on alcohol and related conditions. Retrieved July 20, 2020, from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2669224/

3 Narcissistic personality disorder. (2017, November 18). Retrieved July 20, 2020, from https://www.mayoclinic.org/diseases-conditions/narcissistic-personality-disorder/symptoms-causes/syc-20366662

Workers’ Comp Rules for COVID-19 Depend on Job Type

,

By Frank Ferreri, Special Guest Author, July 28, 2020

If anything in recent history has proven to be the ultimate “disruptor,”  COVID-19 certainly makes a strong case for top billing. Among the many changes the pandemic has brought are new approaches to workers’ compensation across the country, including within the federal government.

So, what’s changed? For some federal employees who contract COVID-19, the nature of their employment will cause the Office of Workers’ Compensation Programs to accept that their exposure was work-related without the usual showing of evidence.

High-risk Employees

As OWCP explained in guidance, federal workers who must have in-person and close proximity interactions with the public on a frequent basis, such as members of law enforcement, first responders, and front-line medical and public health personnel, will be considered to be in “high-risk employment” and have a more direct path to compensation.

As a result, and as the U.S. Department of Labor spelled out in FECA Bulletin No. 20-05 (DOL 03/31/20), if: 1) a COVID-19 claim is filed by a high-risk employee; 2) the employing agency supports the claim; and 3) Form CA-1, Notice of Traumatic Injury, is filed within 30 days, the employee is eligible to receive continuation of pay for up to 45 days.

Under the “old normal,” workers generally weren’t entitled to benefits for exposure to infectious agents without the occurrence of a work-related injury. COVID-19 has shifted OWCP’s focus, particularly for high-risk employees.

“The new procedures … call the adjudicator’s attention to the type of employment held by the employee, rather than burdening the employee with identifying the exact day or time they contracted the novel coronavirus,” OWCP’s guidance explained.

What’s needed for a “high risk” COVID-19 claim under the Federal Employees’ Compensation Act? OWCP requires the following evidence:

  • Exposure. If an employee meets the “high risk” criterion, OWCP will confirm the nature of employment based on the position title and confirm with the agency that the position is considered high risk. With this confirmation, the employee’s COVID-19 infection will be presumed to have come from work-related exposure.
  • Medical. The employee must provide medical evidence establishing a COVID-19 diagnosis. The factual and medical background must include the physician’s recognition that the employee is engaged in high-risk employment that included exposure to COVID-19 while in federal employment.

Other Federal Employees

Acknowledging that not all federal positions are at heightened risk of COVID-19 exposure, OWCP also spelled out what happens for claims from non-high-risk employees. In short, it’s not unlike other workers’ compensation claims.

The employee must provide a factual statement and available evidence concerning exposure. The employing agency is expected to provide OWCP with information regarding the alleged exposure and indicate whether it is supporting or controverting the claim. As with high-risk employees, if the agency supports the claim and a CA-1 is filed within 30 days, the employee is eligible for COP for up to 45 days.

In non-high-risk positions, the employee must provide evidence of the duration and length of occupational COVID-19 exposure. This evidence may include information such as a description of job duties, which agency the employee worked for, and the location of the work. OWCP advises employees to provide a “detailed statement” on:

  • The nature of employment.
  • How long they were exposed to the virus.
  • When the exposure most likely occurred,
  • How long and often they were exposed.
  • Where and how the exposure occurred.
  • From the agency, OWCP will seek information about occupational exposure including relevant agency records. This may include:
  • Comments from a knowledgeable supervisor on the accuracy of the employee’s statements.
  • Whether the agency concurs.
  • Confirmation of an actual positive COVID-19 test result.

Additionally, regarding medical evidence, a non-high-risk employee must show that the diagnosed COVID-19 was aggravated, accelerated, precipitated, or directly caused by work-related activities. This requires a qualified physician’s opinion, based on a “reasonable degree” of medical certainty, that the employee’s COVID-19 was causally related to employment conditions.

“Employment conditions” may include employment-related travel. In such a case, OWCP noted that the employee and agency would have to “describe in detail” the travel and potential exposure.

What’s Not Covered?

Outside of work-related travel, OWCP explained that COVID-19 exposure that occurs while going to or coming from work — such as might happen on public transit — is not compensable, as it does not arise out of and in the course of employment.

Similarly, an employee who’s exposed to COVID-19 while on vacation or leave has not experienced a compensable injury because the exposure must occur in the performance of duty.

[email protected]

The Good News: Federal Labor Law Doesn’t Have to be (and Shouldn’t be) Political

, ,

By Ann Boehm, July 15, 2020

Nice article title, Ann. How can Federal labor law not be political? Isn’t everything political these days?

I will acknowledge that the three-member Federal Labor Relations Authority, like the Merit Systems Protection Board, is usually comprised of two members of the President’s political party, and one member of the opposing party. (The Federal Service Labor-Management Relations Statute (Statute) actually says it is composed of “three members, not more than 2 of whom may be adherents of the same political party.” 5 U.S.C. 7104(a).) I will also acknowledge that over its 42-year history, FLRAs during Republican administrations have tended to be more pro-agency, and FLRAs during Democratic administrations have tended to be more pro-union.

Currently, I think we can say pretty conclusively that this FLRA is listing to the pro-agency side. One union recently filed a lawsuit and alleged unprecedented FLRA bias in favor of agencies. Federal Education Association v. FLRA, Civil Case No. 19-284 (RJL) (D.C.D.C. March 30, 2020).

Personally, I’m not sure that this FLRA’s decisions in favor of agencies are all bad. Some of the decisions correct past FLRA pro-union bias.

What concerns me as a long-time watcher of FLRA law is how the political shifts continue to happen. I haven’t done a statistical study, but it’s fair to say that the Obama Administration FLRA was a bit (maybe more than a bit) pro-union. This FLRA then comes in and reacts by being pro-agency. Next time there’s a Democratic administration, we will likely see a swing back toward the unions. And so on, and so on.

The thing is, it shouldn’t be political. Let’s start with the premise expressed by Congress in the very first lines of the Statute. To paraphrase: Congress stated that the right to organize, bargain collectively, and participate in unions is in the public interest. 5 U.S.C. 7101(a). Federal sector labor relations activities are supposed to benefit the taxpaying public. I’m not sure that’s always the case — and that’s the fault of both unions and agencies.

Congress also drafted a very comprehensive statute that directs how labor-management relations are supposed to work. The FLRA has now had 42 years to interpret the language of the Statute. And the U.S. Courts of Appeals for every circuit but the Federal Circuit (that Circuit handles MSPB cases and not FLRA cases), and even the U.S. Supreme Court, have contributed to the case law interpreting the Statute.

But the political motivations continue to rear their ugly heads. We all have biases. Some people are more pro-union leaning, and some are more pro-agency. The key is managing the biases and trying just to comply with what Congress directed.

I worked at the FLRA during the Clinton Administration. I feel very fortunate to have worked there under Chair Phyllis Segal. She had this crazy concept: she did not want FLRA decisions to be overturned by the courts. She wanted the FLRA to issue decisions—get this—based upon a careful analysis of the facts, the issues, the Statute, and legal precedent. Lo and behold, when I defended those decisions in the courts (including the Supreme Court), we prevailed most of the time. The courts appreciated the careful analysis of the law by the body entrusted to interpret its own Statute – the FLRA.

Which brings me to a recent court decision. The FLRA issued a decision altering its own precedent regarding the meaning of “conditions of employment” and “working conditions.” DHS, CBP and AFGE, 70 FLRA 501 (2018). The FLRA overturned an arbitrator’s award and issued a decision in the agency’s favor. The union appealed to the U.S. Court of Appeals for the District of Columbia Circuit.  On June 9, 2020, the D.C. Circuit vacated the FLRA’s decision and remanded the case to the FLRA for further review. AFGE v. FLRA, Case No. 19-1069 (D.C. Cir. June 9, 2020).

Here’s the real problem with what the FLRA did in its decision and why the court vacated the decision. The FLRA “failed to explain its departure from precedent.” Id. It looks like the FLRA issued a decision for the agency based more on pro-agency bias than careful legal reasoning. And that’s too bad.

It’s possible the FLRA may have been able to overturn that precedent. But it needed to do so based on careful legal analysis and not a desire to make a pro-agency result.

It’s not just the current FLRA that acted in this way. It’s been done before and will be done again, mostly because of politics and bias. It’s too bad that the cycle continues on.

Maybe future FLRAs will just try to ensure that their decisions comport with statutory construction and legal precedent, and they will focus on how labor-management relations can benefit the taxpayer. Maybe it’s a crazy concept, but I think it can be done. It doesn’t have to be political. It really doesn’t. And if we ever get to that point, it’ll be Good News. [email protected]