Drafting Unauthorized Absence Charges: How to Write the Specification(s)

, ,

By Deborah Hopkins, June 12, 2019

One of the more common categories of questions we get at FELTG involves the exceedingly technical area of drafting disciplinary charges. Here’s a recent note that came to us:

I have an employee who is being charged with unauthorized absence for a period of time. The specification(s) read something to the effect “You were absent from duty beginning January 28, 2019 through March 22, 2019 without authorization.”

There is a debate as to whether each day the employee was absent should be listed as a separate specification versus how it’s written above. I believe either specification spells out the conduct the Agency can prove. Any recommendations?

And the FELTG response:

Thanks for the email. I can’t give legal advice on your specific situation, but I can speak to the principle of drafting charges in general. When you charge an employee with misconduct you have to prove every single word in the charge. If there’s one word you can’t prove, you lose the whole charge – even if you have mountains of evidence the employee did something wrong. Check out Parkinson v. DoJ, SF-0752-13-0032-I-1, (October 10, 2014) (NP); Thomas v. USPS, 116 MSPR 453 (2011); Burroughs v. Army, 918 F.2d 170 (Fed. Cir. 1990); Brott v. GSA, 2011 MSPB 52.

When it comes to specifications for charges, you don’t always have to prove every word (though that’s the goal), but you do have to prove the “essence” of the specification. We know from the case law that this means you have to get it pretty close to perfect, but if you get a word or a number wrong you still might get to keep the specification. See, e.g., Russo v. USPS, 284 F.3d 1304 (Fed. Cir. 2002).

Also worth noting, if you have multiple specifications and lose some of those specifications, your charge will still stand – as long as at least one specification sticks. But the more specifications you lose, the more wiggle room it gives MSPB to mitigate your penalty, if the penalty starts to fall outside the bounds of reasonableness.

The danger in [hypothetically] charging something like “absent from duty beginning January 28, 2019 through March 22, 2019 without authorization” is that if during even one of those days the employee was entitled to be absent (let’s say he was incapacitated for duty because of the flu and he had sick leave on the books) then you could lose the entire charge if the adjudicator thinks you have lost the “essence” of the specification. If even a day within the entire span of absence was authorized, have you still proven the specification?

There’s a strong argument to be made that the “essence” is still there, but this is now moving into a gray area. What about the weekends that are included in the span of those dates, when the employee wasn’t supposed to be at work? Is that inclusion of weekends far enough away from the “essence” of the specification, for you to lose you the whole charge? I am not sure I’d want to take on that battle, especially when there is a much easier way to handle this kind of case.

The alternative way of drafting the charge is to list each day of absence as its own specification; that way even if it turns out that for a few of those days the employee would have been entitled to leave, the charge could still stand based on the remaining specifications.

Charge: Unauthorized Absence

Specification A: 8 hours on January 28, 2019

Specification B: 8 hours on January 29, 2019

Specification C: 8 hours on January 30, 2019

Specification D: 8 hours on January 31, 2019

Etc.

It seems like a bit more work to do things this way, but we have learned to be exceedingly conservative when drafting charges. MSPB has traditionally been technical on how it looks at charge drafting, and (if we ever get an MSPB again) we can assume that the new Board members will follow nearly 40 years of precedent in this area.

For more on charge drafting plus a whole lot more, join FELTG in Washington, DC for MSPB Law Week September 9-13. I hope we’ll see you there. [email protected]

And Now a Word With … James Abbott

,

By Dan Gephart, June 4, 2019

In a decision earlier this year, the Federal Labor Relation Authority, to the delight of labor relations practitioners government-wide, reaffirmed a seminal decision from 2018, emphasizing the statutory distinction between conditions of employment and working conditions.

Many people first saw the FLRA decision in DHS CPB El Paso, 71 FLRA No. 10, on the Authority’s web site, while others got the news first from FLRA Member James Abbott himself on LinkedIn. Member Abbott wrote:

The Authority found, as it did in DHS CBP El Paso, 70 FLRA 501 (2018), that neither workload increases attributable to “operational demand” or “mere variations” in normal duties do not constitute bargainable changes.

While board offices at the Merit Systems Protection Board continue to sit vacant, and the Equal Employment Opportunity Commission is just now emerging from its own lack of a quorum, the FLRA has kept plugging along, albeit without a General Counsel. Member Abbott has been a public face of the agency, as he has taken to social media to provide context and clarity to his decisions.

Member Abbott deferred when we asked to further explain this distinction between working conditions and conditions of employment, as the Authority is currently considering several cases that involve this question. “What I can say,” Abbott offered, “is that a number of cases will be issued in the very near future that will turn on this question and will serve to further explain the differences.”

Member Abbott also did not expand on comments related to the pending DC Court of Appeals decision on the Trump Executive Orders, but said: “We are awaiting the decision just as anxiously as the rest of the public and the labor-management relations community.”

Below are a few additional comments Member Abbott shared with FELTG.

DG: What was the reasoning behind your decision to be so active sharing cases on LinkedIn?

JA: Before, at, and after my confirmation hearing, I pledged that I would do everything I could to make FLRA decisions relevant and clear. I believe that it is important that FLRA decisions can be understood by laypersons and attorneys alike. To that end, one of the initiatives that I took upon myself was to summarize and highlight the significance of key decisions of the FLRA. My postings, of course, are not official iterations or citations.

DG: What kind of feedback have you gotten? 

JA: At a number of conferences, I have had the opportunity to speak to many union and agency officials. By far, most individuals have stated that they find the comments helpful and serve as a guide to seeing where our precedent is focused or refocused. I have also received many comments from both union and agency practitioners that the decisions of this FLRA cohort are quite clear and much more understandable than decisions of the past.

DG: There have obviously been major changes to prior FLRA case law over the last year. What changes do you find most significant and why? 

JA: Having served as a practitioner before the FLRA for many years, I always consider that every case that comes before us is significant to the parties involved.  Whereas past majorities of the FLRA have advocated for an “incremental extension” of collective-bargaining, I believe our return to and embrace of the plain language of the Statute is most significant.  

DG: What do you think is the appropriate role of a union in the federal government in 2019?

JA: The role of “labor organizations” in the Federal Government is the same in 2019 as it was in 1978.  Section 7114 of the FSLMRS clearly outlines the rights and responsibilities of “labor organizations” as that term is defined in 7103(a)(4).

[email protected]

Sorting Things Out: Defining Adverse Actions

,

By William Wiley, May 21, 2019

In a previous article, I laid out the distinction between the general concept of “discipline” and what constitutes “discipline” relative to the application of “progressive discipline” in the federal workplace. In this piece, we take on an even more complex concept: adverse actions. Consider these interrelated (and somewhat confusing) truths:

  • Not all discipline is an adverse action, but most of it is.
  • All suspensions are adverse actions.
  • Most adverse actions are appealable, but not all of them are.
  • Not all adverse actions are discipline.

Unlike discipline, the term “adverse actions” has a nice legal definition. Turn to Chapter 75 of Title V of the United States code and you will see the title “Adverse Actions.” Within that chapter, you will find two subchapters: Subchapter I for suspensions of 14 days or fewer and Subchapter II for suspensions of more than 14 days, demotions, and removals. So right away, we know that suspensions, demotions, and removals enforced for disciplinary purposes are by statutory definition, “adverse actions.” In comparison, a reprimand, though disciplinary, is not an adverse action.

And here is where we find one of the common misconceptions in our business. Prior to the Civil Service Reform Act of 1978 (CSRA), the term “adverse action” was defined as applying to appealable (to the Civil Service Commission) long suspensions, demotions, and removals whereas the term “disciplinary action” was defined as applying to non-appealable short suspensions. Subsequent to the CSRA, shorter suspensions still are not appealable and longer suspensions/demotions/removals are (to MSPB). Unfortunately, post-CSRA there is a tendency among the uninformed to continue to use the old concept of “adverse action” as applying to “appealable” actions only.

That’s simply not what the law says. If you’re taking away an employee’s salary for disciplinary purposes by a suspension, demotion, or removal, that’s an adverse action and has been since October 13, 1978. The proper way to think of the distinction between Subchapter I and Subchapter II of Chapter 75 is to refer to “non-appealable adverse actions” (Subchapter I, short suspensions up to a pay period in length) and “appealable adverse actions” (Subchapter II, longer suspensions/demotions/removals).

So now we know why not all discipline is an adverse action (remember reprimands), all suspensions are adverse actions (the title of Chapter 75 of Title V of the USC), and not all adverse actions are appealable (the distinction between Subchapter I and Subchapter II). But what about the claim that not all adverse actions are discipline? There are two places that line is drawn for us:

Statutory: The full title of Subchapter II of Chapter 75 includes an additional personnel action within the definition of an appealable adverse action: furloughs for 30 days or less. I know, I know; the proper phrasing would be “thirty days or fewer,” but we’re stuck with what those folks in Congress have written, at least until they hire an eighth-grade English teacher to do a little editing for them. At any rate, as way too many agencies were forced to remember in the wake of government shutdowns, furlough an employee for 30 days or fewer and you have to use the adverse action procedures of Title II of Chapter 75 (30-day notice period, right to respond and representation, appealable to MSPB). However, a furlough is based on lack of funds, not misconduct. It does not meet the definition of “discipline.” And that’s an important distinction as you will see in a moment.

Case Law: Appealable adverse action removals based on the employee’s misconduct are disciplinary, by definition. However, adverse action removals based on the employee’s medical inability to perform are not disciplinary as there is no misconduct involved, again relying on the definition of discipline. You won’t find this in the law, but you will find it developed as a concept in MSPB decisions over the years.

So we have adverse actions that are “disciplinary” and adverse actions that are “non-disciplinary.” The distinction is important because the Board’s case law related to disciplinary adverse actions does not necessarily apply to non-disciplinary adverse actions. The main precedent relevant to the day-to-day practice of our business and this disciplinary/non-disciplinary distinction is Douglas v. Veterans Administration, 5 MSPR 280 (1981). As every practitioner learns in the first week of employment, if an agency takes an appealable adverse action based on misconduct against an employee, it will live or die by its documentation and defense of its analysis of the famous 12 Douglas factors. However, if the appealable adverse action is not based on misconduct (e.g., a removal for the medical inability to perform), then the Douglas factors need not be analyzed in defense of the penalty. The MSPB will not mitigate a medical-inability removal or a furlough to a lesser level, so there’s no requirement to fire up the old Douglas Factor Worksheet to defend your penalty selection.

Now, if there is anything you need to sort out, join me and FELTG President Deborah Hopkins for MSPB Law Week in Dallas June 3-7, 2019. [email protected].

Civil Service Status Update

,
By Deborah Hopkins, May 21, 2019
    A lot has happened over the last few weeks as it pertains to the world of federal employment law. Here’s a recap, in case you missed anything.
    • MSPB: We finally have a third nominee for the MSPB. Chad Bungard was recently nominated by the President to be the Vice Chairman, for a term that expires in 2025. Among other positions, he previously served as General Counsel at MSPB for several years. As of today, there is no date for a committee vote on his nomination. When might we see the Board back at full capacity? Your guess is a good as ours.
    • Executive Orders: In early April, the Court of Appeals for the D.C. Circuit heard oral arguments in the case dealing with the legality of President Trump’s Executive Orders issued May 25, 2018. Most of the discussion dealt with jurisdictional issues and whether the court, or the FLRA, is the proper forum to discuss challenges to these EOs.
    • FLRA: Speaking of labor relations, the General Counsel seat at the FLRA has been empty for two years, but the President nominated Catherine Bird, who is currently Principal Deputy Assistant Secretary for Administration (ASA) at the Department of Health and Human Services.
    • EEOC: The EEOC has a quorum for the first time since January – and it has a new Chair as well. On May 15, nearly two years after she was first nominated, Janet Dhillon was sworn in as the EEOC’s 16th Chair for a term that expires July 1, 2022.
    • OPM: The Senate Committee on Homeland Security and Government Affairs recently voted to advance OPM Director nominee Dale Cabaniss to the Senate for a confirmation vote. If confirmed she will be the third person to hold this position in just over two years.
    • OPM’s demise: Last week, the administration unveiled the Administrative Services Merger Act, which would effectively eliminate OPM by reorganizing it into a subcomponent of GSA. Under the proposed structure, the person in charge of federal workforce policy would be a non-Senate-confirmed political appointee. As you can imagine, not everyone is happy about this potential change. Because this is a piece of proposed legislation, both the House and Senate will have to agree in order for it to be signed into law by the President.
    • LGBTQ employment protections: A few weeks ago, the Supreme Court agreed to look at whether Title VII’s prohibition against sex discrimination includes an employee’s LGBTQ status. Arguments are on the docket this fall. Also, last week the House passed the Equality Act, which among other things would make protections for LGBTQ federal employees a statutory right. The Senate and the President would need to sign off on this piece of legislation in order for it to become law.
    As you can see, there is a lot going on, and plenty more to come. Stick with FELTG and we’ll keep you posted. [email protected]