Civil Service Update: October 2019

, ,

By Dan Gephart, September 18, 2019

Welcome to FY 2020. Didn’t it feel like we spent most of the previous fiscal year waiting? Waiting for new Merit Systems Protection Board members to be confirmed. Waiting for some type of resolution on the portion of President Trump’s Executive Orders that were under injunction. Waiting for guidance from OPM.

But we’re waiting no more, at least when it comes to the Executive Orders. In case you missed it, here’s a quick recap. President Trump issued three Executive Orders in May 2018 aimed at curtailing union activity and increasing supervisors’ ability to hold employees accountable for misconduct and poor performance. Three months later, several provisions of those Executive Orders were set aside as illegal, per a D.C. District Court decision. Several weeks ago, an Appeals Court overturned the District Court decision. The unions sought an en banc re-hearing, which the Appeals Court has refused.

What does that all mean? Well, the Executive Orders are now fully in play. OPM Director Dale Cabannis was quick to alert agencies, writing in an October 4 memo: “Accordingly, all provisions of these executive orders, including previously enjoined provisions, are in full force and effect and should be implemented consistent with the requirements and guidance contained in the EOs.”

Agencies are now expected to set time limits on bargaining, severely restrict official time, and are allowed to charge unions rent for office space, and that’s just the Labor Relations portions of the Executive Orders, and the president issued a memo to that effect last week. If you deal with federal unions, it’s a good time to register for FELTG’s FLRA Law Week, which takes place next week – October 21-25, 2019 in Washington, DC.

Speaking of the FLRA, the agency recently started posting quarterly case digest with summaries of its decisions. These digests contain summaries of full-length merit decisions issued by the authority. This is part of the FLRA’s strategic to plan to make those decisions more easily accessible. The digests are available on the FLRA website.

That October 4 memo wasn’t the only one the OPM Director sent to agencies. The previous week, Cabaniss issued  Maximization of Employee Performance Management and Engagement by Streamlining Agency Performance and Dismissal Policies and Procedures. Among the items discussed are streamlining performance and misconduct procedures and eliminating unnecessary barriers to holding employees accountable.

If those topics sound familiar to you in FELTG Nation, it might be because that’s what we’ve been teaching for the past 19-plus years. Those of you who have been to MSPB Law Week or Developing & Defending Discipline have a nice head start on what OPM wants. You might equate unnecessary barriers to what we at FELTG call “yellow donut” items. The yellow donut is full of things that are perfectly legal to do, but are legally useless in developing your performance- or misconduct-based actions. They waste your time and misdirect your efforts. As Deb puts it, the yellow donut is full of empty calories.

And hey, how about those MSPB appointments? Just kidding. I’m afraid we’re still waiting for those. In the meantime, be sure check out to last month’s And Now A Word With … Tristan Leavitt, where the MSPB General explained to FELTG readers what the agency is still doing while it waits for the return of a quorum. Lots going on, and lots more to come. We’ll keep you posted. [email protected]

The Good News: Finally, an End to the Table of Penalties!?!

, ,

By Ann Boehm, October 16, 2019

Employee relations specialists, supervisors, and attorneys at agencies all around the country have one thing in common – they love, love, love their agency’s Table of Penalties.  And I just don’t get it.

When I became Chief of Discipline Management at my former agency, I too thought the TOP should be the focus of all discipline.

What I learned instantly, though, was that the TOP is pretty much useless because of the way federal agencies have to charge employee misconduct. In order to comply with years of Merit Systems Protection Board and Federal Circuit law, agencies have to prove every word of a charge against an employee. The result is that the TOP often doesn’t match what the agency charges.

In countless disciplinary letters I reviewed, the following phrase appeared: “Although there is no offense in the TOP directly relevant to the charge in this case, the most closely related is [Enter Offense from TOP Here].” The reference to the TOP resulted in wasted words and nothing gained. So, a nothingburger, basically.

I did a Google search for Table of Penalties and, using the first one that appeared (the agency name is withheld to protect the innocent), I noticed a couple of things of interest. First, 53 offenses are listed.  In 18 of them (34%), the recommended penalty for a first offense is “Written Reprimand to Removal.” Well, isn’t that helpful – NOT!

That’s the penalty range for anything and everything.  So what in the world is good about the TOP in that respect? Second, when is the last time you saw someone charged with “Negligent or intentional injury to person or property of other employees”? Never. Because the MSPB would not sustain that charge and the agency would lose. That’s also one of the ever-so-helpful “written reprimand to removal” offenses. There are almost no offenses in any TOP that would actually be used as the “charge” in an appealable adverse action.

The Good News for this month is that the Office of Personnel Management (OPM) agrees with me: The TOP is not helpful and may even be harmful.

In the proposed revisions to 5 CFR part 752 issued on September 17, 2019, OPM notes that the “creation and use of a [TOP] is not required by statute, case law or OPM regulation, and OPM does not provide written guidance on this topic.”  Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions, 84 Fed. Reg. 48794 (Sept. 17, 2019). Let me boil that down for you. OPM notes that because agencies are to discipline based upon the “efficiency of the service,” agencies “have the ability to address misconduct appropriately without a [TOP], and with sufficient flexibility to determine the appropriate penalty for each instance of misconduct.”  84 Fed. Reg. at 48798.  OPM also states that TOPs “may create drawbacks to the viability of a particular action and to effective management.”  84 Fed. Reg. at 48798. In that regard, OPM explains that “by creating a range of penalties for an offense,” a TOP may “limit the scope of management’s discretion to tailor the penalty to the facts and circumstances of a particular case by excluding certain penalties along the continuum.”  Id.

So what’s an agency to do? Use the Douglas factors (Douglas v. VA, 5 M.S.P.R. 280 (1981)), and not the TOP.

The proposed regulations actually direct agencies to “propose and impose a penalty that is within the bounds of tolerable reasonableness” as established by the MSPB in Douglas. Notably, this will now apply to any removal, demotion, or suspension, including suspensions for 1-14 days.  84 Fed. Reg. at 48798.

As OPM directs, “the penalty for an instance of misconduct should be tailored to the facts and the circumstances, in lieu of the type of formulaic and rigid penalty determination that frequently results from agency publication of [TOPs].” Id.

My friends, say goodbye to the beloved, if not exactly precise, TOP and start using all 12 of the Douglas factors. Once you break free of the TOP, I think you will see that you did not need it at all.  OPM wants you to do it. Take their direction and believe! This is Good News!! [email protected]

Tips From the Other Side: October 2019

, ,

By Meghan Droste, October 16, 2019

Like many other large organizations, the Equal Employment Opportunity Commission issues strategic plans every few years to highlight institutional goals and identify ways in which it hopes to achieve them.  During a recent webinar on EEO updates, I highlighted some of the points from the Commission’s Federal Sector Complement to its Strategic Enforcement Plan for FY 2017-2021. As laid out in the plan, the Commission’s priorities include eliminating barriers in recruitment and hiring, protecting vulnerable workers, and addressing emerging and developing issues.

While I encourage you to review all of the Commission’s priorities to get an insight on the types of cases it will be focusing on in the federal sector, I want to draw your attention in particular to the priority of preserving access to the legal system. For the federal sector, the Commission highlighted that this priority includes improving federal employees’ faith in the integrity of the EEO process.

What does this mean in practice? It means the Commission is going to start sanctioning agencies more.  As noted in the report, “[w]hen Federal agencies repeatedly ignore regulatory requirements to provide files, conduct timely investigations, fail to meet hearing deadlines, etc. and are not held accountable, it erodes employee faith in the EEO program and discourages employees and applicants from accessing the system.” The Commission also noted that it will be on the lookout for “repeat offenders” and considering program evaluations and issues notices of non-compliance to these agencies.

You should, of course, be concerned about meeting deadlines and upholding the integrity of the process just on principle. But if you need a little more incentive in light of the Commission’s stated goal of increased enforcement, consider that default judgment can result in awards of hundreds of thousands of dollars for complainants who never have to prove liability. See, e.g., Dionne W. v. Dep’t of Air Force, EEOC App. No. 0720150040 (2018) (awarding $185,000 in compensatory damages and $155,050 in attorney’s fees); Lauralee C. v. Dep’t of Homeland Sec., EEOC App. No. 0720150002 (2017) (awarding $200,000 in non-pecuniary damages, $223,116.35 in pecuniary damages, and $122,150 in attorney’s fees).

I recommend you calendar every deadline and triple check that they are met, including the uploading of files before a judge is even assigned to the case.  If not, you may find yourself explaining why your agency is on the hook for a six-figure award. [email protected]

Initial-Appointment Probationary Periods: Not the Same as Supervisory Probationary Periods

, ,

By Deborah Hopkins, October 16, 2019

A question recently came up in class about the difference between an initial-appointment probationary period and a supervisory probationary period in the competitive service. It turned into a more interesting discussion that I would have guessed, so I thought perhaps some FELTG readers might also be intrigued. Here goes.

Initial-Appointment Probationary Period

When an individual gets her first job with the federal government, she begins a one-year probationary period with that initial appointment (some jobs are subject to a two-year trial period). During this time, the employee is expected to perform the work at an acceptable level, and to follow workplace rules. If, during the probationary period, there is a problem with the probationer’s performance, the agency can remove the employee without putting her on a performance demonstration period. If the employee is engaging in misconduct, the agency can remove her for a first offense without utilizing progressive discipline, even if the misconduct is minor. In fact, a removal doesn’t have to be related to performance or misconduct, if the agency determines it is not a good fit, or the agency no longer needs the probationer’s service.  In addition, the probationer has very limited appeal rights and generally cannot appeal her removal to MSPB. (There are a few exceptions: If she claims she was removed because of her marital status, or because of her partisan political activity, or for pre-appointment reasons (5 CFR 315.805), she can appeal to the MSPB. Otherwise, the Board has no jurisdiction.) A probationer does have a right to file an EEO or OSC complaint.

The reason a probationer’s MSPB appeal rights are limited is because until the probationary period is successfully completed, the employee has not earned a property interest in her job, and, therefore, she is not entitled to the constitutional due process afforded to vested career employees (advance notice, opportunity to respond, impartial decision). Most employees are on their best behavior when they start a new job. If, in the first 12 months of employment, it becomes apparent the person is already not a good fit, the agency should remove that person before the statutory protections attach.

The probationary period applies to initial appointments with the federal government as a whole, so an employee new to your agency may have already completed a probationary period, or part of a probationary period, at another agency.

Timing is important here so if you’re thinking about removing an employee who is new to your organization, check the calendar to determine whether you can remove them without due process procedures.

Supervisory Probationary Period

Now let’s talk about new supervisors and managers, and their probationary periods, 5 U.S.C. 3321. But first some definitions. According to MSPB’s research brief Improving Federal Leadership Through Better Probationary Practices (May 2019):

A supervisor is someone who accomplishes work through the direction of other people and performs at least the minimum supervisory duties required for coverage under the OPM General Schedule Supervisory Guide. They plan work, communicate organizational goals and policies, guide performance, listen to concerns and ideas, ensure employees have the resources needed to do their jobs, play a significant role in determining the culture of the organization, and often make difficult decisions about employee recruitment, retention, development, recognition, and appraisal. In addition, because resources are scarce for many employers, supervisors are often expected to perform line work that requires technical skills.

A manager supervises other supervisors and is not a member of the Senior Executive Service (SES). Further, a manager, as described in the General Schedule Supervisory Guide, directs the work of an organizational unit, is held accountable for the success of specific line or staff functions, monitors and evaluates the progress of the organization toward meeting goals, and makes adjustments in objectives, work plans, schedules, and commitment of resources.

Because the roles of supervising and managing people are of the utmost importance in agencies achieving mission success, an additional probationary period attaches when an employee first becomes a supervisor or manager. These probationary periods are governed by different regulations than the initial-appointment probationary periods. While there is no statutory timeline, most agencies set this period to a year.

Interestingly, agencies also require managers to complete a managerial probationary period once they begin their first manager job, even if they have already completed a supervisory probationary period.

So, at the end of this probationary period, how does an agency determine if a supervisor or manager has been successful? The regulations allow agencies a lot of flexibility in making this determination before the supervisory appointment is finalized. Some lay out the expectations explicitly while others leave a lot of judgment up to the next-in-command.

Let’s say the supervisory probationary period doesn’t go well and the agency determines the employee is not an effective supervisor. What happens now? Well, just because someone isn’t a good supervisor doesn’t mean that person isn’t a good employee. Results from MSPB’s Governmentwide 2016 Merit Principles Survey show that 72 percent of employees believe that their supervisor had good technical skills, but only 62 percent believed their supervisor had good people-management skills. Interestingly, though, in 2016 there were 28,467 new supervisors but agencies only took action in 192 of those cases – about .67%.

Being an unsuccessful leader does not automatically mean a probationary supervisor is out of a job at the end of the year. As long as that person has successfully completed the initial-appointment probationary period through prior federal service, she will be reassigned to a non-supervisory position in the agency at the same grade-level and pay she was earning before she became a supervisor. A removal from service without due process violates the employee’s statutory protections. If, however, the supervisor or manager was not in the competitive service before beginning her supervisory probationary period, then she is also concurrently serving her initial-appointment probationary period and has no right to a non-supervisory job, so she can be removed from service without due process. [email protected]

Related training: 

FELTG Sets the Record Straight on Whistleblowing

, ,

By Deborah Hopkins and William Wiley, October 8, 2019

We’ve been reading and hearing a lot lately about whistleblowers, most recently about the Ukraine/Biden/Trump situation. We’re not here to discuss the merits of the complaint about President Trump’s conversation with Ukrainian President Zelensky, and we’re not here to discuss politics. We’re here to clarify that the media and numerous folks in Washington have (yet again) gotten a lot of things wrong in talking about this mysterious intelligence community whistleblower.

In discussions about the whistleblower’s motive for making the disclosure, one of the themes that keeps coming out is, “The whistleblower is a partisan.” Well, guess what? Even if that’s true, it’s irrelevant because when it comes to whistleblowing, the motive does not matter.

That’s right, whether a whistleblower makes the public aware of waste, fraud and abuse because he wants to save the world, or whether he does it to get the President impeached, the law protects him anyway, as long as he meets the legal requirements of whistleblowing.

To be protected a whistleblower must disclose:

  • Violation of law, rule, or regulation;
  • Gross mismanagement or gross waste of funds;
  • Substantial and specific danger to public health or safety; or
  • Abuse of authority.

While there is statutory protection and a Presidential Policy Directive (PPD-19) that covers whistleblowing by intelligence community employees, the Whistleblower Protection Act and the Whistleblower Protection Enhancement Act cover a large group of employees in the federal sector non-intelligence communities. That’s what we’ll discuss here today, because these are the statutes that apply to most FELTG readers.  [Editor’s note: House Democrats Ted Lieu (Calif.) and Don Beyer (Va.) recently updated and released a whistleblower guide for federal employees that you may find of interest.]

Let’s start with a little history lesson. Following the implementation of the Civil Service Reform Act (CSRA), a whistleblower’s disclosures were not considered protected if the employee’s “primary motivation” was not for the public good, but rather for was for his own personal motives. See Fiorillo v. Department of Justice, 795 F.2d 1544, 1550 (Fed. Cir. 1986). However, in subsequent years, the Federal Circuit determined it had improperly reached that conclusion because nothing in the CSRA requires an employee’s motives should be considered in determining whether a disclosure is protected. Id.; see also Horton v. Department of the Navy, 66 F.3d 279, 282-283 (Fed. Cir. 1995).

In 1988, Congress decided that a whistleblower’s motivation should not be considered, and that all employees should be encouraged to alert the public of waste, fraud and abuse. “The [Office of Special Counsel], the Board and the courts should not erect barriers to disclosures which will limit the necessary flow of information from employees who have knowledge of government wrongdoing.” S. Rep. No. 413, 100th Cong., 2d Sess. 12-13 (1988). Id.

As we said above, under 5 USC § 2302(b)(8), disclosures of information that the employee making the disclosures “reasonably believes” evidences certain kinds of wrongdoing are protected. The only time bias or motivation might enter the picture is in testing reasonableness of belief in blowing the whistle — and, warning, it’s an uphill battle. While bias and self-interest may be considered in testing the reasonableness of belief, bias alone does not determine that a whistleblower does not have a reasonable belief. LaChance v. White, 174 F.3d at 1381. Personal motivation, whether to save the world, ruin someone’s career, or something in between, does not per se affect reasonableness. Carter v. Army, 62 MSPR 393 (1994).

If “the employee is motivated by a desire to damage others’ reputations,” this fact alone is not dispositive, even though the whistleblower’s motives in making disclosures were to destroy his supervisor “during the course of an internal agency power struggle,” Fickie v. Army, 86 MSPR 525 (2000).

Separately, some in the press made a big issue that the whistleblower disclosed no first-hand information in the complaint, nor any other direct proof of the alleged impropriety that occurred in the President’s July 25 phone call. Again, that’s irrelevant as to whether the individual is a protected whistleblower. A whistleblower need only have a “reasonable belief” in the facts he is disclosing, not actual proof that the facts are as they are being described. In other words, if an individual is told something by a reliable source, and chooses to believe it because it makes sense to him, he is then protected if he discloses the believed facts in a whistleblower complaint. It’s the subsequent investigation of the complaint that is supposed to flesh out the facts based on credible evidence; it’s not up to the whistleblower to prove the allegations.

Some talking heads made an issue out of the belief that the employee is not a whistleblower because the alleged facts do not rise to the level of a crime. Well, federal employees are whistleblowers if they report things other than criminal activity; e.g., a simple abuse of authority or gross mismanagement will suffice to protect the discloser. The commission of a “high crime or misdemeanor” would be relevant to the impeachment process, but not to the status of being a whistleblower.

A lot of guests on talk TV have used harsh words to describe the whistleblower: traitor, spy, partisan hack, deep-state operative, rotten snitch, rat, back stabber, saboteur. In reality, a federal employee who believes that he or she has observed corruption committed by a government official is required by regulation to disclose that belief. A “basic obligation of public service” can be found at 5 CFR Sec. 2635.101

(a) Public service is a public trust. … To ensure that every citizen can have complete confidence in the integrity of the Federal Government, each employee shall respect and adhere to the principles of ethical conduct set forth in this section …

(b) …

(11) Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.

Even if the individual personally did not want to disclose what appeared to be corruption being committed by a particular government official, the regulations mandates that a disclosure be made.

What does this all mean? It means Congress has afforded protections to whistleblowers higher than any other kind of protection in the civil service, and as long as the employee has a reasonable belief that the content of the protected disclosure is true, that whistleblower cannot legally be disciplined for making the disclosure – even if his goal was to make his boss look bad, get fired, or worse.

[email protected]; [email protected]

 

And Now a Word With … Tristan Leavitt

,

Tristan Leavitt, General Counsel, Merit Systems Protection Board

By Dan Gephart, October 1, 2019

More than 200 employees work for the Merit Systems Protection Board in numerous regional and field offices across the country. But it’s the three offices that sit empty at the Board’s Washington, D.C., headquarters that have drawn the most attention.

It’s been more than seven months since then-Chairman Mark Robbins’ term expired. Robbins spent his last two years as the Board’s only member. The Board has lacked a quorum since January 2017 and, therefore, has been unable to issue final decisions on petitions for review for almost three years.

While those three offices on the MSPB’s Executive Floor sit dark, its career employees continue to toil away. We caught up with General Counsel Tristan Leavitt to find out what the MSPB has been doing – and what it has not been able to do – since former Chairman Susan Grundmann’s departure nearly three years ago, when the Board last had a quorum. Under the MSPB’s continuity of operations plan, Leavitt, as GC, has assumed the responsibilities for the executive and administrative functions vested in the Chairman.

Before joining MSPB a year ago, Leavitt was principal deputy special counsel at the U.S. Office of Special Counsel. He also worked for eight years on Capitol Hill, where he served on the staff of the House Oversight and Government Reform Committee and the Senate Judiciary Committee.

DG: Tell us about the work that continues on the adjudication side at MSPB.

LT: AJs have issued approximately 14,550 initial decisions since the Board first lost its quorum in January 2017. At that point, parties have two options. The first option is to submit a petition for review to the full Board, at which point MSPB’s Office of the Clerk dockets the appeal and MSPB’s Office of Appeals Counsel prepares a draft opinion for Board member consideration.

Of the approximately 2,325 PFRs currently pending at MSPB headquarters as of August 31, 2019, 2,180 have had draft opinions prepared by the Office of Appeals Counsel. (MSPB publishes these numbers monthly.) If a petition for review of an initial decision isn’t filed within 35 days, the decision becomes the final decision of the MSPB, at which point the appellant may appeal it to the U.S. Court of Appeals for the Federal Circuit or, in whistleblower cases, to any U.S. Court of Appeals in the country.

In addition, mixed cases may be appealed to a U.S. district court. MSPB’s Office of General Counsel continues to review such federal filings and represents the MSPB as necessary in litigation.

DG: How many PFRs involve back pay or attorney’s fees?

TL:  MSPB doesn’t track at an enterprise level which PFRs involve back pay or attorney’s fees, but 177 are PFRs or cross-PFRs from agencies, and of those, 95 involved the AJ ordering some form of interim relief in the initial decision.

DG: What other work does the MSPB continue to do?

TL: In addition to these various functions surrounding adjudicative work, MSPB’s Office of Policy and Evaluation continues to conduct research pursuant to the agency’s statutory mission to conduct studies of the merit system. [Editor’s note: We’ll have more on the MSPB’s studies in an upcoming article.] Although MSPB does not issue final studies without a quorum, the agency has conducted research and prepared a number of draft reports for an incoming Board to review and consider publishing.

MSPB has also continued to publish a regular newsletter and issue smaller publications on useful topics such as Remedying Unacceptable Employee Performance in the Federal Civil Service, Improving Federal Leadership Through Better Probationary Practices, and The Perceived Incidence of Prohibited Personnel Practices.

DG: What functions have been impacted most, other than the growing PFRs, over the course of this lack of quorum?

TL: Besides the Board itself issuing no decisions, the largest impact on the adjudicative side is the inability to issue stays in response to requests from the Office of Special Counsel. MSPB is also impacted in its studies function and on the regulatory side, where the agency cannot promulgate substantive regulations in the absence of a quorum.

DG: Is there a plan or structure in place so that when Board members are confirmed, they can most efficiently begin to tackle the backlog?

TL: Because the approach to the backlog ultimately is the prerogative of a Board itself, it’s difficult to make definitive plans at this point regarding how to tackle the backlog. Nevertheless, MSPB has taken a number of steps to prepare to swiftly carry out whichever approach a new Board settles on. A new Board will be able to see which types of cases are in the backlog and how old they are. Staff have also drawn up various plans for dealing with the backlog, which the new Board may adopt or modify.

[email protected]

 

If You Don’t Know Where You’re Going, You’ll End Up Somewhere Else

, ,

By William Wiley, September 18, 2019

Yogi Berra laid down an important principle of life when he delivered the quote in our headline. A less-gifted author, such as your reporter here, might have said something like, “You should know what you’re trying to accomplish before you set out to do it.” Of course, that’s why Yogi is quoted more fondly than Wiley. Yogi is so much more articulate.

This leads us to an article we published a couple of weeks ago about disciplining employees. We presented the question: “Why do supervisors discipline employees?” We thought we should try to nail down our goal if we are to understand the value of and the pathway to administering discipline. Although the article was meant mostly as a thought question for all you philosophers out there, we received a lot of really good reasons from several members of the FELTG Nation.

Historically, this particular article received the second-most FELTG Newsletter comments from you avid readers out there, being surpassed only by Deb’s “How to Dress” piece many years ago (a copy of which is still taped to the inside of my clothes closet door, for easy reference).

A number of responses focused on the statutory requirement that discipline be used for such cause as will promote the efficiency of the service. “We discipline to send a message to the employees” was a common theme. In this same line of thought, one responder said that we use discipline to “control the workplace environment.” A couple of other responses took a different approach, wondering if we should really want employees working for the government who have to be coerced into behaving acceptably. One excellent thinker referenced an article published last year by the Society for Human Resource Management (SHRM) that argues that in the modern workplace, discipline has no purpose at all.

What was absent from any of the responses was the belief that we discipline employees to punish them for their wrongdoing, the old eye-for-an-eye tooth-for-a-tooth principle that an employee who has injured the agency is to be penalized to a degree similar to the harm. Frankly, we were glad to see that punishment was not articulated as an objective of discipline.

The distillation of the responses we got is that a supervisor should discipline an errant employee to correct his behavior so that he conforms his conduct to workplace norms in the support of an efficient government. Which takes us to a very real question we should all consider:

If we are disciplining to correct behavior, not to punish behavior, then why do we ever suspend employees as discipline?

If an employee were to do something at work that really hurt the agency, just short of being harmful enough to warrant removal; and if we were intent on punishing the employee, we might well resort to a big long suspension of 90 to 120 days. The US Merit Systems Protection Board is on record as finding such lengthy suspensions to be warranted as mitigation in a few cases over the years in which it has found a removal to be excessive. However, if we were not interested in punishing the employee, and instead had a goal of getting the employee to change his behavior so that he does not engage in future misconduct, then we should look for tools that correct (not punish) behavior. With the corrective approach in mind, when we consider whether we should suspend an employee as discipline, we start to realize a few things about suspensions:

1. There’s no proof that they get employees to correct their behavior. Oh, we’ve all seen employees who were suspended who did not engage in future misconduct, but perhaps they would have refrained from future misconduct with something other than a suspension. I’ve been on the lookout for 40 years for some scientific (preferably double-blind) study out of some reputable research entity that establishes that the greater the degree of lost pay enforced as a disciplinary suspension, the less likely it is that the individual will repeat the misconduct. The closest I’ve come to the severity of punishment correlated with the rate of recidivism is in research done with criminals. And there seems to be no correlation between the length of a sentence and the likelihood that the individual will repeat the criminal act. Your gut may tell you that the greater the suspension, the less likely it is that the individual will repeat the misconduct, but there’s no science to back that up.

2. Suspensions are not free. If a supervisor suspends an employee for three days, what happens to the work the employee would have done had he been at work? Does it go undone? Does it get dumped on coworkers? Do we call in contractors to do the work, or pay overtime? We’ve been told of cases in which agencies had to spend two to three times the employee’s lost salary to get the work done during the employee’s suspension. If I was going to spend that kind of government money, I’d want to be sure I was getting something of greater value in return. Suspensions as corrective tools have not been proven to be that valuable.

3. Suspended employees often challenge the suspensions. EEO complaints are free to the employee and resource-draining for management. Grievances take up a lot of management time, with serious costs if the union invokes arbitration. If the supervisor suspends the employee for more than 10 workdays, there’s the good old MSPB appeal/discovery/hearing/petition-for-review/federal court-times-2 process to be dealt with. If the employee is a whistleblower (aren’t they all?), then there are those delightful folks over at the US Office of Special Counsel who are ready, willing, and able to investigate and prosecute the pants off of a reprising management official

If we are disciplining to control the federal workplace, to modify behavior in support of an efficient government, then we should not use tools that don’t offer the promise of accomplishing that objective. Here within the FELTG neural net, that reality began to settle in about five or six years ago. When asked for advice on the development of a disciplinary policy, we recommend using two reprimands to establish progressive discipline, then removing the non-conforming employee without using suspensions at all. The SHRM article goes so far as to argue that the word “reprimand” is out of place in a modern workplace, and suggests that instead, we use the word “Notice.” Something worth considering.

We think Yogi would be proud of any agency that took this progressive discipline approach: Reprimand, Final Reprimand, then Removal. That’s because we seem to all be in agreement that where we want to end up is with a more efficient federal government, not with punished individuals for the sake of punishment. [email protected]

We Don’t Need Civil Service Reform, Part III: It Doesn’t Take As Much Proof As You Think

, ,

By Deborah Hopkins, September 18, 2019

In the final installation of this three-part series, I will discuss how holding employees accountable does not take as much evidence as you think it does. Before you read this, though, take a look at the first two articles in the series:

Holding employees accountable is not as difficult as you think it is.

Holding employees accountable is not as time-consuming as you think it is.

I hope by now you’ll agree with me that the civil service system is not completely broken, but instead is being used inefficiently. Today we will tackle the final challenge, on the amount of evidence needed to take actions against employees for misconduct or performance-related problems.

A 2015 MSPB survey found that 97% of federal supervisors thought they needed more evidence to remove a federal employee that they actually do. The most startling number was that 94% of proposing officials thought they needed evidence beyond a reasonable doubt – that’s the amount you need to send someone to jail – to take an accountability action. The reality is, the evidence you must show to defend your action is far lower.

In DISCIPLINE cases, the level proof you need is called a preponderance of the evidence, which is that degree of relevant evidence which a reasonable mind, considering the record as a whole, might accept as sufficient to support a conclusion that the matter asserted is more likely to be true than not true. 5 CFR 1201.56(c); 5 CFR 1201.4(q).  If it is more likely than not that the employee violated a workplace rule (stole a laptop, falsified a time card, acted disrespectfully toward a supervisor, went AWOL, failed to follow a supervisor’s instruction, etc.), the agency has enough proof to discipline. If you are a supervisor and your employee said something disrespectful to you in a one-on-one meeting, you have a preponderance of the evidence. It’s as simple as that. You might have witnesses, video logs, an admission, or more, and that’s fine, but you don’t actually need that much evidence.

The most disempowering words a supervisor can hear from an advisor when the supervisor wants to take action against an employee who has violated a workplace rule is, “You can’t do that because you don’t have enough evidence.” In most cases, there actually is enough evidence to proceed.

In PERFORMANCE cases, the proof you need is substantial evidence, which is evidence that reasonable person might accept [not would accept] to support a conclusion relevant in an unacceptable performance action, even though others may disagree. 5 CFR 1201.56(c)(1); 5 CFR 1201.4(p). If an employee might have failed a critical element in her demonstration period, that is substantial evidence – even though other supervisors might disagree with the assessment of the employee’s performance. (Unless it’s a widget-based, black and white standard that is not open to interpretation.)

Additionally, with performance cases, unless your agency is exempted from the performance procedures in the statute, there is no requirement to do a Douglas factors analysis. Things like harm, length of service, work record and potential for rehabilitation do not have any impact – the MSPB can’t even look at those factors if the employee appeals a performance-based removal. The only evidence that matters is what happened during the 30-day demonstration period.

A special word to our friends at the VA – under 38 USC 714, which is just over two years old: Your burden of proof is substantial for both misconduct and performance cases for all employees covered by this statute.

Hopefully, you now see that you don’t need as much effort, time, or evidence as you thought you did, in order to hold a federal employee accountable. The legal minimum makes it easy to take the necessary actions so that an employee being paid by our tax dollars gets better, or else moves on to something else. [email protected]

The Good News: At Last, Successful Last Rites Agreements

, ,

By Ann Boehm, September 18, 2019

In many training sessions, we suggest that agencies consider a “Last Rites” Agreement to handle problem employees. In my experience, despite our encouragement, many agencies still don’t use this effective tool. Finally, however, I heard from a recent class participant who had  success with Last Rites in 8 out of 9 employment situations. That’s Good News, and I want to share it.

For those who don’t know what a Last Rites Agreement is, our Grand Poobah Emeritus Bill Wiley described it in an April 2017 FELTG newsletter article:

A Last Rites agreement is negotiated at the point that the supervisor has reached the conclusion the employee needs to no longer be employed in his position. Many times, the supervisor has already collected enough evidence to propose a removal based on either misconduct or unacceptable performance. Here’s how it works in most cases:

1. The supervisor or someone on her behalf (attorney, human resources specialist, ombudsman … whomever) approaches the employee with the offer. The employee is told that he has a removal facing him soon, and is offered the chance to resign voluntarily rather than be fired. Some employees see a resignation as an advantage to being fired because the employee’s Official Personnel File will record a voluntary quit rather than a forced removal. (See the sample in the back of your copy of UnCivil Servant).

2. Supervisors see voluntary quits as an advantage to firing the employee because the quit is effective immediately at getting the employee out of the workplace, and the employee has waived appeal/grievance/complaint rights in a well-worded Last Rites agreement.

3. The employee has the choice of being fired and exercising appeal rights, or quitting and foregoing appeal rights in exchange for a “clean record.” [Boehm note: By acting before any final action occurs, the agency also avoids conflict with Executive Order 13839’s edict that there be no more Clean Record settlements that remove items from official personnel records. This is pre-official record.] Sometimes agencies will incorporate a little time off or attorney fees as an extra incentive to resign. MSPB has a perfect record at upholding agreements like these as long as the agency does not mislead the employee (emphasis added).

Sounds so logical and simple, but agencies are not doing these. I suspect some folks fear it is “coercion” or a “constructive discharge.” But that’s not how the MSPB and Federal Circuit see it. These are perfectly legal.

So along comes this month’s hero to tell us about the situations where he had success with Last Rites Agreements.  To his credit, he wanted to share this with our newsletter readers to “potentially help people in the future.”  We here at FELTG are very appreciative.

Here are some of the success examples:

  1. Female employee bullied and demeaned other female employees for approximately 10 years. Despite investigations substantiating misconduct, her supervisors never took any action. The last straw was when she harassed a colleague who was having trouble conceiving a child. The supervisor suddenly wanted to fire her. Without any prior discipline, the Last Rites Agreement was a safe way out. The agency called in the union representative, since the employee was in the bargaining unit. They offered her 60 days of pay, and even the union thought this was fair.  She accepted the agreement!
  2. An employee had a long history of attendance issues, including AWOL and habitual tardiness. Supervisors failed to act, but finally did give him a letter of reprimand. He went AWOL after that. The agency offered him a Last Rites Agreement. The union representative was briefed prior to delivery. He accepted the agreement!
  3. One perpetually tardy/AWOL employee had received a reprimand and suspension and removal was up next. The employee had lost his son to illness six months earlier. As a humanitarian move, the agency offered a Last Rites agreement instead of removal. He accepted the agreement!
  4. Another employee was facing prison time for a DUI with bodily harm to another person. He kept postponing his court dates and lingered on as an employee, and the supervisors wanted the conviction in place before proposing removal. He knew he was facing prison time and likely removal, so he was actually relieved to get paid for 30 days and have the ability to resign. He accepted the agreement!
  5. Two employees were harassing and bullying a female subordinate for several months. She filed a grievance and the agency investigated the matter. The agency was ready to remove both, but the agency elected to try a Last Rites Agreement. They both accepted the agreement!

I didn’t even include all of the examples from this one agency. Last Rites Agreements work. At least give it a try.  And if you try and succeed, please let me know.  You too can make The Good News.

[email protected].

Accommodation and Performance Issues II

, ,

By Barbara Haga, September 18, 2019

Once again, we are looking at handling performance issues in the case of an employee with a disability based on information provided in the EEOC guidance document The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities.

Section III.c of the guidance document covers the matters addressed in this column. It is a section about conduct matters, but the examples include performance, too. Sections quoted from the EEOC document are in italics.

10) What should an employer do if an employee mentions a disability and/or the need for an accommodation for the first time in response to counseling or discipline for unacceptable conduct?

If an employee states that her disability is the cause of the conduct problem or requests accommodation, the employer may still discipline the employee for the misconduct. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for reasonable accommodation.  

If the discipline is something less than termination, the employer may ask about the disability’s relevance to the misconduct, or if the employee thinks there is an accommodation that could help her avoid future misconduct.

We are going to look at the examples in reverse order since they line up with the two options discussed above that way.

Example 20: An employee informs her supervisor that she has been diagnosed with bipolar disorder. A few months later, the supervisor asks to meet with the employee concerning her work on a recent assignment. At the meeting, the supervisor explains that the employee’s work has been generally good, but he provides some constructive criticism. The employee becomes angry, yells at the supervisor, and curses him when the supervisor tells her she cannot leave the meeting until he has finished discussing her work. The company terminates the employee, the same punishment given to any employee who is insubordinate. 

The employee protests her termination, telling the supervisor that her outburst was a result of her bipolar disorder which makes it hard for her to control her temper when she is feeling extreme stress. She says she was trying to get away from the supervisor when she felt she was losing control, but he ordered her not to leave the room. The employee apologizes and requests that the termination be rescinded and that in the future she be allowed to leave the premises if she feels that the stress may cause her to engage in inappropriate behavior. The employer may leave the termination in place without violating the ADA because the employee’s request for reasonable accommodation came after her insubordinate conduct.

This example is important for several reasons. Although it arose in a performance context (the counseling meeting), it is actually a misconduct issue in the Federal context since the action results from the employee yelling and cursing at her supervisor. It reiterates the point that employees with disabilities are expected to meet the same conduct standards as any other employee and allowing such an employee to violate an accepted standard because of a disability is not a reasonable accommodation.

Another reason this example is helpful is it serves as a reminder that managers can require employees to stay put in meetings. My sense from training lots of supervisors is that many of them might not have responded as this supervisor did when the employee tried to leave. I think some might have felt that they could normally require an employee to stay but might have paused this time because this employee had disclosed that there was a disability. As the EEOC described the scenario, the supervisor properly told the employee she had to stay for the discussion of her work.  This is one of the things that you might consider mentioning to a supervisor when you help them with actions and prepare them to deliver the notices. They need to be ready to say, “you have to stay,” when discussing performance matters since sometimes employees, with disabilities and without, will refuse to listen or attempt to walk out when confronted with information about performance deficiencies.

Example 19: Tom, a program director, has successfully controlled most symptoms of his bipolar disorder for a long period, but lately he has had a recurrence of certain symptoms. In the past couple of weeks, he has sometimes talked uncontrollably and his judgment has seemed erratic, leading him to propose projects and deadlines that are unrealistic. At a staff meeting, he becomes angry and disparaging towards a colleague who disagrees with him. Tom’s supervisor tells him after the meeting that his behavior was inappropriate. Tom agrees and reveals for the first time that he has bipolar disorder. He explains that he believes he is experiencing a recurrence of symptoms and says that he will contact his doctor immediately to discuss medical options. The next day Tom provides documentation from his doctor explaining the need to put him on different medication, and stating that it should take no more than six to eight weeks for the medication to eliminate the symptoms. The doctor believes Tom can still continue working, but that it would be helpful for the next couple of months if Tom had more discussions with his supervisor about projects and deadlines so that he could receive feedback to ensure that his goals are realistic. Tom also requests that his supervisor provide clear instructions in writing about work assignments as well as intermediate timetables to help him keep on track.

The supervisor responds that Tom must treat his colleagues with respect and agrees to provide for up to two months all of the reasonable accommodations Tom has requested because they would assist him to continue performing his job without causing an undue hardship.

Tom’s example is a good news story. The disability was disclosed close after the performance deficiencies began, the medical provided the next day, the fix with new medication would only take six to eight weeks, and in the meantime there was a reasonable solution to help Tom successfully perform in the interim. If all goes as planned, management should be able to retain what appears to be a good employee with a successful performance record.

In this case, it appears that the supervisor agreed to the requested accommodation without any discussion about consequences tied to the outburst. If we could roll the clock back: What would have been the answer if the supervisor had wanted to discipline Tom for the outburst? From a discrimination point of view, there is nothing that would prevent the supervisor from doing so since the disability was not disclosed until after the outburst occurred. From a disciplinary standpoint, there is a choice to be made. If the supervisor is satisfied that Tom’s outburst is not likely to recur, then a memo to the record about what happened and noting that Tom was told that this inappropriate behavior wouldn’t be tolerated in the future, might be appropriate. But, if the supervisor wanted to take an action such as a reprimand or short suspension and felt it was warranted given that others who engaged in similar outbursts were similarly disciplined, then it is not out of the realm of reasonableness for that to be the outcome

On the performance side, the supervisor should certainly document what the issues were regarding deadlines and projects. A memo to Tom citing what the problems were and what the supervisor would do in the next weeks to assist Tom in bringing his performance back to an acceptable level would be appropriate. In this example, Tom’s health care provider recommended that the supervisor do the very types of things that might have been suggested as part of a counseling process for Tom.  I would imagine that most of us would stop short of a PIP given that there is an expectation that Tom will return to successful performance in a short period of time.