Tips from the Other Side, Part 11

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By Meghan Droste November 14, 2018

Parties in EEO cases have to make many decisions throughout the process — from the complainant deciding at the outset whether to remain anonymous during the counseling period to the agency deciding whether to accept or reject an administrative judge’s findings.  One of the earliest decisions for an agency is whether to accept a complainant’s claims for investigation. In my experience, the answer is usually yes. The agency will accept most, if not all, of the claims and the complaint moves forward. Sometimes, however, an agency will decide to dismiss an entire complaint at the beginning for failing to state a claim.  While the EEOC’s regulations require agencies to do so when appropriate, this decision has the potential to trip up an agency because it can lead to inappropriate weighing the merits of the complaint.

Two recent decisions from the Commission illustrate potential pitfalls in dismissing a complaint for failure to state a claim. In Vickey S. v. U.S. Postal Service, EEOC App. No. 012018055 (Aug. 15, 2018), the complainant asserted that she felt forced to resign when she experienced retaliation for speaking with a union steward, and when her supervisor slammed keys down in front of her, required her to drive in a vehicle with no heat, and threatened to remove her; the complainant alleged that all of these incidents occurred after she notified her supervisor that she was pregnant. The agency dismissed the claim, finding that the complainant was not aggrieved and the incidents were not sufficiently severe or pervasive. The Commission reversed, as it often does when an agency determines at such an early stage that a claim is not sufficiently severe or pervasive.

In Mack R. v. Department of Agriculture, EEOC App. No. 0120181607 (Aug. 3, 2018), the complainant alleged the agency discriminated against him when it issued a Letter of Warning (LOW) to him.  The LOW included a statement that the agency would not place it in the complainant’s official personnel file. As a result, the agency dismissed the complaint, finding that it did not state a claim because the complainant had not articulated a harm or loss.  In its decision reversing the decision, the Commission noted that if the agency had reduced the LOW to a discussion and expunged the LOW from the complainant’s record there would be no harm. As the agency did not do so, and the LOW still existed in the agency’s files, albeit not in the complainant’s OPF, the complainant could allege that he suffered a harm or loss.

While agencies certainly have an obligation to dismiss complaints that do not state a claim, such as claims that allege violations of laws that are not under the EEOC’s jurisdiction, I recommend erring on the side of caution when the concern is not that the complaint could not possibly state a claim, and instead that it could not state a strong claim. [email protected]

Take a Deep Breath … Relax: Stress and Mindfulness in the Workplace

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By Dan Gephart, November 14, 2018

Is everybody stressed out at work, or does it just seem that way? Why is everybody so stressed? What can we do about this stress? Why do I keep asking questions about stress? Are all of these questions STRESSING you out?

We actually know why people are stressed in the workplace thanks to the American Institute of Stress. Workload issues (45%), people issues (28%), juggling work and family life (20%), and lack of job security (6%) are the leading reasons.

And we know that stress leads to increased workplace accidents, absenteeism, reduced productivity and even workplace violence, as FELTG President Bill Wiley discussed in a recent FELTG News Flash.

And with the holiday season in full swing starting next week, we’re about to hit the most wonderfully stressful time of the year.  What can we do to tame all this workplace stress?

I reached out to the amazing Phillis Morgan, founder of Resilient at Work. I was fortunate enough to edit a book on labor relations that Phillis wrote a few years ago. Phillis is a former federal labor and employment lawyer who worked with the departments of Homeland Security, Justice, and Defense, and with conflict-riddled environments in Afghanistan, Uganda, and Nepal.  For her advisory work in Afghanistan, Phillis was awarded the NATO Service Medal, Secretary of Defense Medal for the Global War on Terrorism, and the Joint Civilian Service Achievement Award.

Earlier this year, she wrote an article on “Fierce Leadership” for a Federal Manager Association publication. I suggest you track it down.

DG: How does anxiety impact performance, particularly for federal managers?

PM: Anxiety and stress are of significant concern for American employees in general, and certainly for managers in the federal work space. Workplace stress and anxiety are related, multi-faceted issues that increasingly are of huge concern to employers and society at large. Anxiety has both a psychological and physical dimension. According to the American Psychological Association, anxiety is an emotion characterized by feelings of tension, worried thoughts and physical changes like increased blood pressure.

Stress is the emotional and physiological response to a trigger. In both cases, our perceptions of the external event make a big difference in whether we regard the event as anxiety or stress-inducing. Not all stress is “bad,” and a healthy level of stress can contribute to optimum performance. For example, a manager can interpret a tight deadline as a positively motivating challenge, producing a healthy stress response. A new project where the learning curve is high can be interpreted as a positively stressful event or a negative one.  Unfortunately, what managers and other employees are experiencing today, and have for some time, are critical and escalating levels of workplace stress.

DG: What suggestions do you have for managers and supervisors who are feeling overwhelmed?

PM: The research is clear that the most stressful type of work is that which values excessive demands and pressures that are not matched to workers’ knowledge and abilities, where there is little opportunity to exercise any choice or control, and where there is little support from others. In fact, a gap between control versus demands is associated with increased rates of heart attack, hypertension and other disorders.

The National Institute for Occupational Safety and Health (NIOSH) recommends that any serious stress reduction program include an effort to remove or reduce the sources of stress at work, such as job redesign or organizational changes, not just manage stress levels on an individual basis.

This view is consistent with the findings of Stanford professor Jeffrey Pfeffer in his latest book titled, “Dying for a Paycheck.”  Pfeffer’s central argument in the book – like NIOSH’s – is that employers need to focus more on those management practices that are leading to substantial health issues in the first place, practices such as layoffs, job insecurity, toxic cultures and long hours.

So, that’s the place to start: Managers and supervisors should turn inward to examine the organizational and managerial policies and practices they have which may be contributing to the problem, and look for ways to redesign them. At the same time, managers and supervisors can take steps to manage their stress and improve their overall well-being.  Here are some strategies that the research demonstrates are the most effective in combating stress and a sense of overwhelm:

Awareness. This includes increasing awareness of your stressful triggers and your responses to them. This is also known as mindfulness.

Reframing the problem or situation. What is the story you are telling yourself about the situation? Is it really a problem? Is it really as disastrous as the story you are spinning?  Can you reframe it in a way that doesn’t seem so overwhelming or intractable?

Task management. Can you delegate any part of the task? Can you break it down into more management chunks?

Exercise. It increases the production of endorphins, (your brain’s feel-good neurotransmitters), improves mood, is relaxing, reduces the symptoms associated with mild depression and anxiety, and can improve sleep.

Meditation. Calming meditation practices such as sitting meditation, moving meditation, (yoga), or breathing exercises promote the body’s relaxation response, groundedness, and resilience.

Get some support. Reach out to, and accept help from, trusted friends and family members. Contact the employee assistance program (EAP) for further guidance and counseling, and referral to mental health professionals, if needed.

DG: Mindfulness is not a widely accepted practice in the workplace. While that’s changing, there are still a lot of people, including supervisors, who don’t take the topic seriously. Do you still deal with negative bias about the term when doing training? And how do you deal with it?

 PM: Many years ago when I first tried introducing mindfulness to workplaces, employers thought it was too woo woo and there was significant reluctance. There’s been a sea change since then with mindfulness becoming much better accepted as a management and leadership strategy.  A client who is a manager at one of the larger agencies suggested I start with the science behind how mindfulness works and that’s what I do, and it really resonates with managers. I’ve been studying and working with these practices for 15 years so for me, personally, I like relating to the practices from a more intuitive or less heavily intellectual approach. Yet, I can understand that for someone who is unfamiliar with mindfulness, combined with perhaps the myths surrounding it, entering from a science gateway is more comfortable. It’s really not a problem because the science is there, supporting what people have been experiencing as the benefits of mindfulness for thousands of years. However a manager or supervisor wants to orient to the subject, there is room. [email protected]

OPM Clarifies the No-Clean-Record Executive Order Provision, Part 2

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By William Wiley, November 6, 2018

As we discussed last week, one of the Executive Orders (EOs) issued by the White House on MAY 25 effectively did away with an agency’s ability to resolve an employee controversy by entering into a “clean record” settlement agreement. There are several problems with that new limitation. On October 10, OPM issued “Interpretative Guidance” to address one of the problems.

That problem is that the EO left no room for exceptions. When a document was placed in the employee’s personnel record, it could not be removed as part of an agreement with the employee. No exceptions. Well, upon reflection, OPM advises us that there are indeed two exceptions to this iron-clad no-clean-record rule:

Corrective Action Based on Discovery of Agency Error  

Section 5 requirements should not be construed to prevent agencies from taking corrective action should it come to light, including during or after the issuance of an adverse personnel action, that the information contained in a personnel record is not accurate or records an action taken by the agency illegally or in error.

Corrective Action Based on Discovery of Material Information Prior to Final Agency Action

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

Practitioners on both sides have expressed relief at OPM’s providing exceptions to the EO. You see, every practitioner we’ve spoken with – union or management, attorney or HR specialist – would like to be able to settle cases by agreeing to a clean record. An analogy to the criminal justice system helps us understand the gravity of the EO’s restrictions. Just think what it would be like in the judicial system if charged individuals could not take a plea bargain. These two provisions give at least a little ground for the practitioner to stand when arguing that a document should be removed from the employee’s e-OPF. Besides, these agreements have to be self-reported to OPM annually. There is no oversight to this process. We all learned in elementary school that we get higher grades when we grade our own papers.

At the same time, the EOs’ restriction and OPM’s “clarification” really do not make a lot of practical sense in some ways:

  • The EO says that adverse documents may not be removed from the “employee’s official personnel records.” The only record that meets that definition is the employee’s Official Personnel File, aka the e-OPF. That’s the only employee file that travels everywhere with the individual and lasts forever, into retirement and beyond, perhaps into heaven or hell for all we know, amen.
  • Agencies sometimes maintain separate Employee Relations files or Discipline files. However, strictly speaking, those are not an employee’s “personnel records” because they stay with the agency. They do not follow the employee as he moves from one agency to another. They are “agency” files, not an employee’s “official personnel record.”
  • There are three documents created when an agency fires an employee:
    1. Notice of proposed removal
    2. Decision to remove
    3. SF-50 that effectuates the decision to remove
  • Only the third document is routinely placed into the e-OPF. The first two, if retained at all, are retained in files in human resources. Therefore, there is good argument that the EO restricts agencies from removing an SF-50 from the employee’s e-OPF, but does not affect the retention or deletion of the other two documents: the proposal and decision.

OPM’s clarification, however, seems to take a broader view. It talks about prohibiting the removal of documents in a “personnel file,” not just the employee’s official personnel records. Does that mean that the agency is prohibited from deleting the proposal and decision memos even if an SF-50 is never generated (because the employee resigns)? Who knows?

Separately, both the EO and the OPM memo refer to prohibiting an agency from removing these documents in only three situations:

  1. In response to an employee complaint,
  2. When settling an appeal or grievance initiated by the employee, or
  3. Resolving an employee-initiated action.

That leaves open the question: If there is no employee-initiated complaint/grievance/appeal and the employee simply asks that the documents be removed, does the EO prohibit removal in that situation?

Bottom line: The OPM memo gives the agency a reason to remove documents in a certain limited situation which the EO did not. However, this whole thing is still a mess. Agencies are all over the place interpreting what it means. Gee, don’t we wish that there was a tiny little training company who could provide better guidance than what we have so far? Only time will tell if there is. [email protected]

OPM Clarifies the No-Clean-Record Executive Order Provision

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By William Wiley, October 30, 2018

One of the Executive Orders (EOs) issued by the White House on May 25 effectively did away with an agency’s ability to resolve an employee controversy by entering into a “clean record” settlement agreement. As background, here’s how life works in the federal workplace when it comes to taking adverse actions against employees:

1 – The agency proposes, then decides to implement an adverse action … say, a removal.

2 – The employee exercises his right to challenge that removal by filing an appeal, complaint, or grievance.

3 – Neither the employee nor the agency really wants to go through the appeal/complaint/grievance process. These procedures are expensive, time-consuming, lengthy, confrontational, and of uncertain outcome for both sides. Therefore, both management and the (former) employee have a strong incentive to settle the matter without litigation.

4 – Employees often just want to get on with their lives. They really don’t want to return to the agency that fired them. Agencies don’t really care what happens to the employee after he is gone, they just want him gone, never to return.

5 – Employees perceive that they will have a challenge getting on with their lives if it is documented in their official personnel file (OPF or e-OPF) that they have been fired. Therefore, as part of a settlement negotiation, the employee will ask that the SF-50 personnel form documenting his removal be removed from his e-OPF. Hence, the term “clean record.”

6 – Agencies don’t care if the employee’s record is clean. They know him and he is never getting rehired at that agency regardless of what’s in his e-OPF. If another agency is stupid enough to hire the employee without calling the previous-employing agency to check up on the employee’s work history, things not necessarily in the e-OPF, then that’s their problem. Agreeing to provide a clean record is a powerful bargaining chip that agencies have in settlement discussions because, in the agency’s opinion, they cost the agency nothing.

According to the recent EO, this widespread practice is bad for government. The belief appears to be that somehow by keeping this adverse information out of the e-OPF, future agency employers are disadvantaged. The future employer might hire the formerly fired individual without knowing about his previous bad work history. So, the EO requires that this practice be abandoned. Section 5 of Executive Order 13839 of May 25, 2018, Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles, provides as follows:

Sec. 5. Ensuring Integrity of Personnel Files. Agencies shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records, including an employee’s Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.

Well, even if the principle behind the EO is a good one, the practical reality undermines the requirements of no-clean-record for one simple reason: HIRING OFFICIALS DO NOT ROUTINELY REVIEW AN APPLICANT’S e-OPF DURING THE HIRING PROCESS. Whether the SF-50 documenting a prior removal is in the record or not, it doesn’t matter. The application form itself requires the applicant to disclose any separations from previous employment under adverse conditions. That requires the applicant to disclose separations resulting from settlements with other government agencies as well as separations from private sector employers. Lying on an application for government employment is a criminal violation and can result in jail time for the applicant. The cleanliness, or lack thereof, of the e-OPF is an exceedingly minor matter.

The result of the EO is that a valuable bargaining tool available for agencies has been taken away, with very little resulting value for the government by the iron-clad ban on clean record settlements. Whoever conceived of Section 5 might be onto something worth pursuing, but the approach taken by the EO reveals a lack of practical understanding of the federal hiring process.

On October 19, OPM stepped into the fray by issuing an “Interpretative Guidance” memo to help agencies deal with the restrictions of Section 5. Unfortunately, for many of us front-line practitioners, while the memo giveth, it also taketh away. We discuss that issue in a separate FELTG article.

Isn’t this crazy? Here at FELTG, we’re just a tiny little training company, full of contractors just trying to make a living. Yet we have to help you wonderful civil service law practitioners understand what the White House is really trying to do. Geez, I hope we get this right. [email protected]

Administrative Juries: Love Them or Hate Them?

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By William Wiley, October 23, 2018

In a previous article, we laid out an alternative dispute resolution mechanism that employees could opt for if offered the option by management. Unlike the traditional ADR process of mediation, this form of ADR requires that the employee waive other rights of redress and resolves the matter permanently at its terminus. We called this procedure an Administrative Jury and promised you a discussion of its pros and cons in a later article. Well, this is that later article.

Instead of a pro/con approach, we’ll analyze the Administrative Jury option from a love/hate approach. These days if you watch cable TV, you will recognize that love/hate has become a very standard way of viewing life these days.

Lovers – There are some groups that are going to love Administrative Juries as an option to the standard redress systems:

  • Employees who want a prompt resolution to workplace disputes. Employees who believe that they have been mistreated will opt for juries to get a quick day in court. Sometimes employees believe that the whole management structure in an agency is a coven of witches and devils. By giving the employee a chance to be heard by a group of coworkers, the grieving employee is bypassing those evil managers and hopefully getting a more neutral, perhaps even employee-biased, decision.
  • Managers who want a prompt resolution to workplace disputes. A pending discrimination complaint against a supervisor can adversely affect the supervisor for years. The Sword of Damocles is a good analogy. It’s like a splinter in your foot until you finally get it out. No more coerced mediation or constructive apologies. No more depositions and responding to document demands. No more being cross-examined by someone trained to make you look like a racist idiot. You get in, you make your best case, and you rest easy and early knowing that you’re going to win more jury decisions than you’re going to lose.
  • Employees and managers who don’t want to spend a lot of money. Years ago, GAO estimated that the cost to the government of an MSPB appeal was about $100,000 IF the removal was upheld. Senior counsel in a big DC law firm can charge above $800 per hour to represent an individual in a complaint or appeal. For some higher ups, that’s not a lot of money, but it is for those lower in the pay scales, the ones that need the help the most.
  • Why coworkers? Because an Administrative Jury is the ultimate in “employee engagement.” Give employees the chance to help decide who gets to work at the agency and you have empowered them to have a significant impact on their daily lives. No longer are they just on the receiving end of whatever it is management wants. You are treating them as adults who have a joint responsibility with management to make the organization function as it’s supposed to function.

Haters – There are other groups who stand to take advantage of the current system and would not want to see anything replace it:

  • Private sector employment lawyers, the ones who make a good living representing employees in the traditional redress systems. They provide a service in which their income is based on how long it takes them to provide counsel to a client. They can still have an income in an Administrative Jury system, but it’s not going to provide enough income to buy a new Tesla every year.
  • Attorneys on both sides who believe that their side is always right, and if they just do enough discovery, examine enough witnesses, and file scintillating briefs written mostly in Latin, they will be victorious. These folks do not subscribe to the old maximum, “Don’t let the perfect defeat the good enough.” They demand that every rock be overturned and will take a case all the way to the Supreme Court to prove to the rest of the world that they are the smartest, more righteous litigant in the case. They cannot accept that a system that produces a good-enough answer quickly can be better for America than a system that produces the “right” answer every time.
  • Employees and managers who believe that they need to punish the other side by dragging it through traditional litigation. Tell me you don’t know employees who intentionally file baseless complaints to coerce management into something, and I will tell you that you haven’t had much experience in this business. Fortunately, these folks are the exception, but they still exist. And they would never opt for a quick resolution via the jury route when they can cause great suffering and pain through traditional redress procedures. They don’t want an answer, they want a fight.

So, there you have it. In three brief articles, a system that could improve the civil service greatly. Hopefully someday someone in a position of power will give this approach a trial. That someone could be you. Pick a component of your organization and set up this option. Try it for a year or so. Have a neutral third party evaluate the results. Then tell the rest of the world how it worked out. Did you know that some of the high-tech companies out here in Silicon Valley near where I work give an award every quarter to the internal organizations who try something outside the box, and fail? They see the value in trying something new even though there is a chance for failure.

If you’re happy with the EEO complaint system we have now, if you look forward to being attacked at an MSPB hearing, if you have nothing better to do in your job other than deal with workplace disputes, then forget these three articles. However, if you believe that there just might be a batter way to run the government, here’s your procedure and now’s your chance. Be brave. Grab the gold ring. And most of all, have fun doing something new. [email protected]

Why Not an Administrative Jury? (Part 2)

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By William Wiley, October 17, 2018

This is the second part of a three-part series.

In a previous article, we explained how the American jury system could be used to demonstrate the differences among three standards of legally required proof:

  • Beyond a Reasonable Doubt: 12 out of 12 jurors must agree (used in criminal cases).
  • Preponderant evidence: 7 out of 12 jurors must agree (used in misconduct removals).
  • Substantial evidence: 4 out of 12 jurors must agree; maybe even just 3 (used in performance removals).

Then, we teased that perhaps this concept could be used to build an alternative dispute system, a system to replace the tedious grievance/appeals/complaint/mediation processes now provided to employees by law or regulation. There are no normal people in the world who think that these processes are perfect, or that they make for a great way to deal with disputes in the federal workplace. You know how I know that? Because that’s how I define normal. If you think the existing systems are wonderful, you are not normal.

So how could this jury-evidence analogy work to be the basis for a fair expeditious system to resolve employee-initiated disputes? We are so glad that you asked. Here are the details of an Administrative Jury procedure:

1 – Workplace disputes arise when management takes or fails to take an action that an employee thinks is wrong. An “action,” for example, can be discipline, a reassignment, or a failure to promote; just about anything that can now be the subject of a discrimination complaint, grievance, or appeal.

2 – Currently, when an employee decides to dispute a management action, he is given access to one of several regulatory-defined redress systems. Those systems usually involve many steps of review, take a long time to play out, and cost taxpayers and the employee basket-loads of money.

3 – As an alternative to these procedures, management could offer employees who want to dispute an action the option of invoking resolution of the complaint by an Administrative Jury. This would be an option for management. Administrative Juries can occur only through mutual consent.

4 – If the employee selects the option of an Administrative Jury, the agency would then convene the jury by selecting 12 agency employees who have previously volunteered and trained to serve in the jury pool. The jurors would be selected at random, except that none could come from the employee’s work unit.

  • “But, Bill, won’t that cost a lot of money? Some of those coworkers might come from far away and the agency would have to pay all that per diem.”
  • Whoever asked this question clearly has no idea what it costs the agency to go through the traditional processes.
  • Travel and per diem expenses for jury members is a drop in the financial bucket compared to the costs of traditional litigation.

5 – The jury convenes in a conference room at 9:00 AM. Each side, management and the employee, gets 90 minutes to speak to the jury.

6 – The party speaking first is the party that has the burden of proof in the dispute:

  • Discipline – Management goes first.
  • Discrimination Complaint – The employee goes first.

7 – Each side can have two Presenters; e.g.

  • In a discrimination complaint, the two Presenters for the employee might be the employee and his attorney. Or, perhaps two witnesses who observed the discriminatory event and who can tell their story to the jury.
  • In a removal action, the agency might choose to have the proposing and deciding officials as Presenters. Or, a human resources specialist and a witness.
  • The parties can have more than two Presenters by mutual consent.

8 – The Presenters speak directly to the jury.

  • There’s no direct nor cross-examination.
  • Presenters can provide documents to the jury members.
  • The jurors can ask questions of the Presenters.

9 – The parties are done by noon and excused. After lunch, the jurors discuss and decide the outcome of the dispute.

  • For a discrimination complaint to be resolved in favor of the employee, seven or more jurors have to find discrimination.
  • For discipline to be upheld, seven or more jurors have to vote to uphold the discipline
  • For a performance removal to be upheld, four or more jurors have to find removal warranted.

10 – The jurors reach a decision sometime that afternoon, the parties are informed before COB, and the next day, we are back to running a federal agency.

“But, Bill, there must be pros and cons to the Administrative Jury process. Why haven’t you discussed those yet?” Because, dummy, we like to keep you coming back for more. [email protected]

Stay tuned to FELTG for the third installment in our Administrative Jury series.  

The #MeToo Movement by the Numbers

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By Meghan Droste October 17, 2018

This year, I have logged thousands of miles traveling to various parts of the US and Japan to teach courses on several different topics.  One area that I have covered in nearly every course is sexual harassment — what it is, when an employer is liable for it, and what agencies can do to address and prevent it. I am frequently asked if there has been a change in the number of reports of harassment or the number of cases alleging sexual harassment since the rise the #MeToo movement last October. Until now, I have had to answer the question with anecdotal evidence from my practice and stories of others in the field. It has generally felt that more people are willing and able to come forward now to report what has happened to them and to press employers to hold harassers accountable.

The EEOC recently released numbers that back up the general feeling that there are more reports of sexual harassment. As the Commission notes, in the past year “the country heard story after story of sexual harassment that just one year before might never have been told.” In What You Should Know: EEOC Leads the Way in Preventing Workplace Harassment, the Commission provides statistics from Fiscal Year 2018 that demonstrate just how much the legal landscape has changed.

Although the report does not include numbers from the federal sector, we can see a noticeable change in the numbers of charges and lawsuits filed.  The Commission observed a 12 percent increase in the number of sexual harassment charges filed in the private sector.  There was also a 50 percent increase in the number of sexual harassment lawsuits the EEOC filed. Sexual harassment cases made up more than 60 percent of the cases the Commission filed in FY18.  The Commission also recovered almost $70 million for victims of sexual harassment through litigation and administrative enforcement.

The public’s interest in information regarding sexual harassment also increased during the past fiscal year. The Commission reported that the hits on the sexual harassment page of its website more than doubled. Requests for training by the EEOC also increased across the country [Editor’s Note: as has also happened at FELTG.]

It is still too early to tell what the lasting impact of the #MeToo movement will be. It is encouraging, however, to see that in just the last 12 months, it has made a difference. You can read more about the FY18 numbers on the EEOC website. The EEOC has also issued press releases about several of the harassment suits it has filed this year, which you can read here and here. [email protected]

The Danger of a Bad Investigation

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By Deborah Hopkins, October 19, 2018

Have you ever conducted an administrative investigation? Depending on the allegations at issue, even if you haven’t yet, you might one day find yourself in a Sherlock Holmes hat and cape, tasked with discovering the truth.

You have the best chance of doing so if your job title is any of the following:

  • HR specialist
  • Law enforcement officer
  • Attorneys
  • Contract investigator
  • EEO specialist
  • IG or professional responsibility staff
  • Line manager

The characteristics of a legally sufficient investigation are that the investigation be prompt and objective; that all relevant witnesses be interviewed, particularly when credibility is at issue; that all relevant documents are reviewed; that the investigator follows up as information is collected; and that a fair analysis of the facts is given. California Labor & Employment Law Review, Vol. 28, No. 6, pp. 1-7.

Objectivity is really key here; if the investigator shows any bias, it undermines the entire investigation. One of the worst things that can happen to both an agency and an employee, is for an investigator to conduct a bad investigation. Whether it’s a misconduct investigation, an EEO investigation, a reprisal investigation, or another type, the results can cost the agency anything from a minor sanction to a sizeable settlement to default judgment – and it can cost the employee years of waiting for a final answer.

One of the lead cases we discuss in our Workplace Investigations Week training (next held in Washington, DC, November 5-9) is Whitmore v. Labor, 680 F.3d 1353 (Fed. Cir. 2012). In this case, the employee was fired. The agency said it was for misconduct. Mr. Whitmore alleged it was in reprisal for his protected whistleblowing.  The Department of Labor brought in an investigator who from the start showed extreme bias against the appellant. You should read the case for yourself (or come to our class) if you want the details, but among the highlights – er, lowlights – the investigator refused to interview any of the appellant’s witnesses, and also sent an email to a DOL official saying he would help the agency “kick [the whistleblower’s] ass this time.” It was such a bad investigation the agency ended up settling the case for $820,000 rather than go to a rehearing. Ouch.

In the discrimination world, EEOC has seen a number of bad investigations. Recently, in a complaint of disability and reprisal discrimination, the EEO investigator doing the investigation did not interview any of the witnesses identified by the complainant, which the Commission noted unfairly restricted the complainant’s ability to prove discrimination (ya think?). The Commission also said it would not have been unduly burdensome for the investigator to talk to those six witnesses (again, ya think?). There was no investigation into the complainant’s statement that he was not allowed to take annual leave in lieu of sick leave for his disability-related issues. This, said the Commission, was articulation of a denial of a reasonable accommodation that the investigator should have addressed, but did not. This case got remanded to the agency for a supplemental investigation.  Julius P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120162827 (Mar. 6, 2018) [TXT].

The complainant’s first contact with an EEO counselor was on March 2, 2015, and the new investigator is presumably only talking to his witnesses and investigating the denial of reasonable accommodation allegations now, coming up on four years after the fact. It’s unfortunate to all parties involved that years later, this matter in Julius P. is still not resolved, and all because of a bad investigation. Need more? Come to the classes. We’re here to help. [email protected]

 

A Gritty Approach to Avoiding First Impression Hiring Mistakes

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By Dan Gephart, October 17, 2018

Author J.K. Rowling wrote in one of those boy wizard books: “First impressions can work wonders.” Well, they didn’t work wonders for J.K. Her first Harry Potter book was rejected by 12 different publishers before it found a home and became an industry all its own.

First impressions aren’t to be emphatically embraced, but tempered with caution.

Exhibit A: Gritty.

The Philadelphia Flyers of the National Hockey League introduced Gritty as their new mascot on a recent Monday morning. What stands out on the seven-foot-tall mound of unkempt orange fur is the set of googly eyes that never blink. Media called Gritty a big orange blob, a creep, terrifying nightmare fuel, a cross between Elmo and Grimace gone wrong, the Babadook of professional sports, and the most frightening mascot ever invented. There was widely held agreement that he had a major substance abuse problem.

Gritty was the laughingstock of social media. Within a few hours of his introduction, he was photoshopped into images from every horror movie imaginable. People shared videos showing their young children screaming at the sight of Gritty’s monstrosity.

As morning moved into afternoon, it became clear: The Flyers had made a miscalculation of epic proportions. Gritty was the New Coke of mascots. The Flyers haven’t won a Stanley Cup since Jimmy Hoffa disappeared. Maybe Gritty needed to vanish, too.

But then the unexpected happened. People started to embrace Gritty. Perhaps, the mascot’s human side came out when he slipped on the ice during his first night on the job. Or maybe people felt bad about the abuse he was taking. Maybe people liked the resiliency Gritty showed as he got pummeled all over the Internet. Whatever it was, fans (most, not all) got over their shocking first impressions.

First impressions are formed within milliseconds and based heavily on our biases. I sometimes get mistrustful when someone offers me a limp handshake or fails to look me in the eyes when greeting me. I have to regularly remind myself: There are many reasons why someone may not have a firm handshake or may look down at the ground when we meet. It could be ability-related, or there could be cultural or religious reasons.

All hiring managers are trained at some point to avoid the “Just Like Me Complex.” Whether we admit it or not, we are biased in favor of people like us, whether it’s our race, gender, political beliefs, education, or personality. You are all aware of the study that found that resumes bearing African American or Hispanic names received half as many callbacks as those with more traditional white names.

First impressions lead to untold poor hiring decisions every day. Let the job candidate worry about that first impression. You need to make a decision that isn’t based on that initial gut feeling. Here are some ways to avoid the first impression trap:

  1. Self-identify your biases and be aware of the role they play when making personnel decisions.
  2. Focus on the objective, job-related qualification standards of the position for which you’re hiring.
  3. Ask the same questions of all candidates. (While you’re at it, make sure to leave out any questions that border on illegality.)
  4. Take careful notes during each interview. The notes will help you make the best decisions. They will also help protect you if there is a future discrimination claim.

If you’re unsure of any of these suggestions, well get yourself some training. As you know, we offer that training – and we do it quite well.

By the way, Gritty’s week got much better after that rough start. There were appearances on Good Morning America and the Tonight Show with Jimmy Fallon. In a sports world overrun with forgettable sports mascots, Gritty appears here to stay.

May you see the true Gritty in your next hire. [email protected]

 

FELTG Training is not Like Law School

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By Deborah Hopkins, October 19, 2018

If you’re like me, you don’t have the fondest memories of law school. Sure, there were classes I enjoyed and professors who challenged me (in a good way), but there were a lot of things I didn’t enjoy. I think I started my countdown to graduation before first-year orientation was complete. Among the worst memories are those times I was called on, required to stand up in front of 60 classmates, and grilled about the minute details of the assigned class reading as sweat rolled down my back and I internally prayed for a fire drill or power outage.

Those days are behind me. I still spend most of my time in a classroom, but I now have the privilege of being in the front of the room. I still have to answer questions and some of them are stumpers, but all in all I absolutely love teaching classes on employment law for FELTG and haven’t once had a nightmare about anything that has happened during one of our programs.

Participants often give feedback about our trainings and many times the feedback directly correlates to how FELTG training is nothing like law school. Here are a few of the recent areas that students have commented on.

FELTG doesn’t use the Socratic method. That’s right, we don’t. All of our instructors know the horror of the being put on the spot, so we will never do that to you in any of our classes. We will ask questions and see if anyone would like to answer because we love in-class discussions, but we won’t ever force you to stand up and talk about what you know – or reveal to the class that you don’t know anything because it’s your first week on the job. Rest assured that when you come to our classes, you don’t have to say a word all week, if you don’t want to.

FELTG’s intent is to teach you, not screen you out for failure. We’ve all seen the bad movie that takes place in law school. On day one, the professor uses some version of this speech: “Look to your right and to your left. At the end of this semester, one of the two people next to you  – or maybe it’s you – won’t pass this class and will be kicked out of law school.” Well, at FELTG it is not our goal or desire to kick you out or to have you fail the class. Our goal is to teach you things – law and strategy – that you might not have known, in order to make your job easier and the government run more efficiently. And if you earn CLE or HRCI credits and happen to have fun while doing it, then we consider the class a success.

There is no homework or pre-reading required. Some participants of FELTG programs have been in the business a long time, while others come to training right after starting a career (or career change) in federal employment law or federal supervision. With that understanding, we never give you a reading list or pre-work for any of our seminars. You can show up on day one with zero knowledge, and you will be just as welcome as if you have 20 years of experience litigating before the MSPB or EEOC. One of the most common things our participants say is that they always learn something new from our classes.

We don’t have forced group projects. We won’t do that to you. There are times you have the option to have group discussions or mini-workshops, but if you prefer to work alone, that’s no problem for us. (Exception: Our MSPB and EEOC Hearing Practices Week requires you to work with your litigation team to prepare and deliver a hearing in front of a judge, so you do have to work with others a bit during this class.)

All questions are welcome. There are no stupid questions, and our instructors will assure you that all questions – no matter how silly or basic you think they are – are welcome in our classes. After all, if you’re thinking it, chances are that at least a handful of your other classmates have the same question. So ask away!

There are no final exams. FELTG offers an optional Federal Employment Law Practitioner Certification for a number of our classes but we NEVER require participation, and the testing mechanism takes the form of quizzes rather than exams. The longest quiz takes about 15 minutes to complete, so there’s no reading period required.

We have fun. Yes, it’s true; we have fun during class. We love what we do, and our instructors will make you laugh by telling jokes, or talking about details from wacky cases. The best part of our business is that we never have to make anything up. Any wild scenario you can imagine has happened in some agency, somewhere, over the last 40 years.

Don’t take my word for it; come to a class and check out why FELTG training is different from any other training you’ve ever attended.

We’re now taking registrations for 2019 classes. We hope to see you soon.

[email protected]