Tips From the Other Side, Part 9

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By Meghan Droste September 19, 2018

No one — at least no one I know — likes to get in trouble. It’s never fun to be caught in the act or to be called out for failing to meet expectations. When it looks like we have been caught, we tend to deflect: I didn’t do it; and if I did, it wasn’t really that bad; and no matter how bad it was, you can’t punish me for it.

From what I remember, this rarely worked when I was a child, and it certainly does not work when arguing a case. Unfortunately, it seems that several agencies missed this memo when it comes to arguing that the EEOC does not have the authority to issue monetary sanctions.

In case after case, the Commission has shot down variations of the same argument when it comes to monetary sanctions. Several agencies have argued that the EEOC does not have the authority to order a federal agency to pay money to a complainant as a form of sanction in the administrative process.

These arguments generally center on the idea of sovereign immunity — the principle that a party may not sue the government without its consent. Agencies assert that the federal government has not waived sovereign immunity in a way that would permit it to use public money to pay a sanction in connection with an order from the EEOC.

The argument that sovereign immunity prevents the Commission — both administrative judges and the Office of Federal Operations — from ordering an agency to pay monetary sanctions goes back to at least 2005 with the case of Matheny v. Department of Justice, EEOC Req. No. 05A30373 (Apr. 21, 2005). In at least 11 other cases, agencies have asserted the same argument, including as recently as in the Taylor Z. v. Department of the Army decision from July EEOC Pet. No. 0420160037 (July 26, 2018). In every case, the Commission has rejected this argument outright and concluded that it has the authority to issue these sanctions.

This is a losing argument. Trust me. I cannot envision any circumstance in which the Commission is going to suddenly reverse its position on this issue.  Please save yourself, and everyone else, the trouble and do not try this argument.  You’re not going to win and you will only succeed in wasting the time and resources of your agency, the complainant and the Commission.

If you have specific questions or topics you would like to see addressed in a future Tips from the Other Side column, email them to [email protected].

Another Case Involving the Role of Agency Defense Counsel During the EEO Investigation

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By Deborah Hopkins, September 19, 2018

For eons (OK, maybe not eons but it sure feels like it), the EEOC has issued decisions that discuss the importance of conducting impartial investigations. In these decisions, the Commission also shares its view of the role of agency defense counsel during EEO pre-complaint and investigation stages. The Commission has repeatedly held that agency defense counsel should not be involved in assisting supervisors during the pendency of these processes. Yet, the sanctions EEOC issues when agency OGC offices do become involved are so weak that, as Ernie Hadley wrote in this newsletter back in 2014, “it should give pause as to how serious the Commission really is about the issue.”

Just a few weeks ago, the Commission tackled the topic yet again in Josefina L. v. SSA, EEOC Appeal No. 0120161760 (July 10, 2018). In this case, the complainant filed a complaint against her supervisor for harassment and discrimination based on sex and disability, alleging a number of discriminatory events that occurred over a 13-month period. You can read the case yourself if you want to get an idea of her claims, but I’ll give you the punchline: Josefina didn’t like it when her supervisor told her what to do, and she let him know that by using sarcasm and/or by not performing the job duties he told her to. The decision is mostly unremarkable, as the Commission found no discrimination based on the merits.

However, the Commission took time to address how an attorney in the agency’s OGC worked closely with the accused supervisor (in the decision, he is referred to as S1) in developing his affidavit for the EEO investigator:

In the email, Counsel told S1 it was great to have spoken with him that morning and requested that S1 provide a copy of his affidavit for review. In an email dated January 5, 2016, Counsel informed S1 that he was “the attorney assigned to assist” him with his affidavit for his EEO complaint, and he was working on revisions and should have them for S1 within the next few days. Counsel further directed S1 “not to discuss OGC’s involvement in this case with the Investigator in any capacity,” and to inform Counsel immediately if the investigator contacted him for other information. Additionally, in an email dated January 7, 2016 to S1, Counsel asked S1 to review OGC’s proposed changes and comments about his draft affidavit statements. Counsel also directed S1 “not to cc [Counsel] on the correspondence to the investigator, or otherwise share [Counsel’s] involvement in this matter,” and to ensure that all his comments were deleted from the final version of his affidavit responses.

It’s clear from the facts above that the attorney absolutely did not want his assistance to S1 to be known. Not good.

The Commission has previously held that an agency representative “should not have a role in shaping the testimony of the witnesses or the evidence gathered by the EEO Investigator.” See Tammy S. v. Dep’t of Defense, EEOC Appeal No. 0120084008 (June 6, 2014), recon. denied, EEOC Request No. 0520140438 (June 4, 2015). So it is not surprising that in Josefina L., the Commission found “…that Agency counsel impermissibly interfered with the investigation… We determine that OGC’s actions undermined the integrity of the EEO process by eroding the necessary separation of the investigative process from the Agency’s defensive functions.” The Commission also noted that this agency was recently sanctioned for similar conduct. See Hortencia R. v. SSA, EEOC Appeal No. 0120150228 (May 3, 2017). Strike two.

The Commission, finding improper interference, imposed sanctions on SSA in Josefina L.: EEO managers and OGC personnel were ordered to undergo training on the proper role of OGC in the EEO process. The Commission determined that “OGC’s actions did not impact the investigation or the ultimate determination of Complainant’s case to such an extent that a more severe sanction is warranted.”

If you’re thinking, “That’s it?” you had a similar response as mine when I read this case. If EEOC considers this such a huge injustice, why are the sanctions so weak?

If agencies were to take the Josefina L. decision as an EEO policy, the accused supervisor would be hung out to dry with no help, unless he hired his own attorney to assist during the investigation stage. (A quick look at the Laffey Matrix tells you that’s out of the question for most supervisors.) If agencies were to take the Josefina L. decision merely as a continued expression of the Commission’s wish list or preference, they might not change anything in the way they provide assistance during the investigation.

As far as we are aware, there is no law or regulation that specifically prohibits all agency counsel from providing advice to supervisors during EEO proceedings. But Management Directive 110, Chapter 1, Section IV, says:

Because the agency carries this responsibility of impartially processing discrimination complaints, conflicts of interest can arise when agency representatives in offices, programs, or divisions within the agency with a legal defensive role play a part in the impartial processing. This does not mean that any involvement in the EEO process by the Office of General Counsel or Office of Human Capital automatically creates a potential conflict, but instead refers to impermissible involvement in the EEO process by those employees or units of employees designated to represent the agency in adversarial proceedings. See Complainant v. Dep’t. of Defense [TXT], EEOC Appeal No. 0120084008 (June 6, 2014) (finding that an agency representative should not interfere with the development of the EEO investigative record by “us[ing] the power of its office to intimidate a complainant or her witnesses”); see also Rucker v. Dep’t. of the Treasury [TXT], EEOC Appeal No. 0120082225 (Feb. 4, 2011) (stating an agency “should be careful to avoid even the appearance that it is interfering with the EEO process.”) [bold added]

I’m all for an impartial EEO investigation. After all, the law requires it, and it’s only fair. When agency defense counsel is clearly looking to impact the investigation, we have a big problem and a violation of the law. But is impartiality automatically thrown out the window when an agency attorney assists an accused RMO through the process? Not automatically, but it should cause you to pause. Look at the bold text in MD-110. My read says that an attorney who will be defending the agency should not be involved, but it doesn’t say another attorney cannot be involved. A federal supervisor is presumed to be acting on behalf of the agency, so why shouldn’t someone in the agency (perhaps a different attorney, or an L/ER specialist not involved in agency defense) help the supervisor prepare to explain her actions to an investigator?

Is there a happy medium? What if agencies:

1 – Build a wall around an attorney in OGC who can work with the supervisor during the investigation, and then do nothing else on the case (therefore, not become the agency’s “representative”); or

2 – Use an L/ER specialist to work with the supervisor in the investigation stage, so as not to mingle the defense role with the ongoing investigation; or

3 – Hire outside counsel to work with the supervisor during the investigation stage, to assist in the development of the affidavit, and any other related matters.

Would those options make agencies more comfortable while simultaneously making EEOC happy? Your ideas and thoughts are welcome. [email protected]

Summary Performance Ratings and PIP Initiation

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By William Wiley, September 19, 2018

Here at FELTG, we invite seminar participants to address follow-up questions to us in case we were unclear in class, or simply if the old memory isn’t working too well on a particular day. The following is a question we received recently from an attendee in our famous and fabulous MSPB Law Week seminar. Check out our website for the next offering of that program in your neighborhood: www.FELTG.com.

The question:

Greetings!  Hope all is well.

I have a hypothetical question related to the training we recently had regarding firing employees who cannot perform acceptably in their positions.

During your training, you walked us through the benefit of not marking an employee as ‘Unacceptable’ and simply proceeding with the PIP.  Can you please explain that rationale again?

Thank you.

Our tried and true FELTG-answer:

No probelmo. Here’s the logic tree:

1 – If you PIP an employee, he cannot challenge your judgment that his performance is unacceptable. That determination and the PIP itself are outside the grievance and EEO complaint process (with the limited exception of reprisal and hostile environment complaints). He can challenge the result of the PIP if there is a failure to perform, but he cannot challenge the initiation of the evaluation period itself.

2 – If the employee fails the PIP, you fire him. He can then appeal to an MSPB judge who will most likely affirm the removal. The MSPB appeal takes three to four months for the judge to adjudicate the removal appeal, then we’re essentially done. There is a possible higher-level review by the Board and even by the courts, but the judge’s decision is usually upheld all the way through the appellate process.

3 – HOWEVER, if you give the employee an Unacceptable performance rating at the same time you PIP him, he can separately challenge that rating. He can file an EEO complaint, have your judgment that the performance was unacceptable investigated, get a Report of Investigation, file a formal complaint with EEOC, and eventually get a hearing before an EEOC judge and a decision as to whether the Unacceptable rating was justified. That process these days takes about four years.

If you give a rating commensurate with initiating the PIP, the eventual removal arguably could be set aside years later by some crazy EEOC judge ruling that the performance prior to the PIP was not unacceptable after all.

Trust me. You do not want this ugly mess on your hands. Just don’t rate him. Initiate the PIP and it’s a much more secure action. As we always teach, do no more than required by law when you are dealing with a problem employee. The more you do, the more you will have to be prepared to defend. And the more you have to defend, the greater is the chance that somebody somewhere in the review process will find fault with something you did.

If your CBA or agency’s stupid policy requires that a summary rating of record be given at the same time you initiate a performance evaluation period, then you are stuck. However, that’s hardly ever the case. Just initiate the PIP, wait 30 days, then propose to fire the employee if he does not perform to standard in all the elements of his performance.

This is sooooo easy if you know what you’re doing.

Our Most Popular Topic This Year

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By William Wiley, September 19, 2018

When you’re in a classroom as much as we are here at FELTG, you start to notice topics that come up from participants when they form a pattern or are repeated. The most asked-for repeated topic we’ve had so far this year is for a format for a Reprimand in Lieu of a Suspension.

If you’ve attended our classes, you know that here at FELTG, we’re down on suspensions as a form of discipline. They hurt the agency sometimes more than they hurt the employee. On suspension days, the agency has to forgo the services of the suspended employee. Coworkers sometimes have to pick up the slack, not something that makes for a happy workplace. We even had a supervisor in a class earlier this year who said he had to spend nearly a thousand dollars in overtime to cover for a suspended employee. Why do these things if there’s an alternative just as good without all the downside?

And that’s where a Reprimand in Lieu of a Suspension comes into consideration. Experienced Employee Relations Specialists know how powerful progressive discipline can be when trying to defend firing an employee. As President Trump reinforced in his May 25 Executive order, progressive discipline is not mandatory, but as seasoned employment lawyers have learned, the Board gives a lot of weight to progressive discipline when evaluating the Douglas Factors relevant to a case.

Every GS-1 Employee Relations Specialist knows there are three steps to traditional progressive discipline:

1st offense –    Reprimand

2nd offense –   Suspension

3rd offense –    Removal

 The variation that we here at FELTG think is a great idea is to replace the suspension second-step with a Reprimand in Lieu of a Suspension. Here’s how that would work:

First offense – Reprimand, as usual

Second offense –

a. Propose a classic suspension.

b. Then, after the employee has responded to the proposed suspension notice, the Deciding Official offers the employee a Reprimand in Lieu of a Suspension using the format below.

c. f the employee accepts, you have avoided the workplace harm caused by a suspension, with the bonus that you will not have to deal with a grievance or EEO complaint.

Third offense – Remove as usual based on the two prior acts of discipline.

MSPB has recognized this alternative as equivalent to a suspension for many years now as long as the employee agrees to it (we’ve not seen the Board treat a unilaterally-imposed alternative in the same manner). if you’re not using them, you’re missing out on an employee-friendly management-supporting approach to discipline that can really make your life better.

We’re just busting with cutting-edge ideas like this. Come to our seminars and learn even more.

 

Reprimand in Lieu of Suspension Agreement Format

[Letterhead]

From:   [Deciding Official’s name, title, and organizational location]

To:       [Employee’s name, title, series, and grade]

Subj:     Decision Regarding Proposed [Suspension of X Days]

Date:    [Month, day, and year]

On [date of proposal notice], your supervisor proposed to me that you be suspended based on certain charged misconduct. [If the employee responded to the proposal, note that here; e.g., “You responded both orally and/or in writing to the proposal.”]  I have considered the proposal and all information relevant to the charged misconduct, and it is my determination that discipline is warranted. However, because your suspension from the workplace would cause a hardship for the agency, I hereby offer you a Reprimand in Lieu of Suspension under the following conditions:

  1. You commit to abstaining from any future acts of misconduct.
  2. You acknowledge that this Reprimand in Lieu of Suspension is a step in progressive discipline and may be used as an aggravating factor in deciding the proper penalty should you engage in further misconduct.
  3. You adopt this reprimand as a voluntary act on your part which you will not grieve nor otherwise challenge in any forum.

If you accept this offer of a Reprimand in Lieu of Suspension, please sign and return this memo to your supervisor by close of business tomorrow. If you choose not to accept this offer, I will issue my decision regarding the proposed suspension as soon as practicable.

____________________________

[Deciding Official’s signature]

 

By my signature below, I, accept a Reprimand in Lieu of Suspension under the above conditions.

_____________________________________               ____________

[Employee’s name]                                                       Date

 

 

Who’s Afraid of a Big Bad PIP?

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By William Wiley, September 11, 2018

We hear it all the time from participants in our supervisory classes. “My HR specialist advised me not to use the Chapter 43 unacceptable performance procedures with a problem employee. He said the misconduct procedures would be much easier.” The White House executive order dealing with accountability went out of its way to stress that Chapter 75 procedures were always an option instead of Chapter 43 when dealing with a poor performer, see EO 13839, “Promoting Accountability & Streamlining Removal Procedures Consistent with Merit System Principles.” Finally, the recent MERIT Act voted out of a House committee last month would abolish 5 USC Chapter 43 altogether, thereby preventing agencies from using a demonstration period to give the employee a chance to show whether he can perform acceptably.

Here at FELTG, we just don’t see the problem. Sure, if the bad employee has already done something that warrants removal, 5 USC Chapter 75 adverse action procedures are preferable. Otherwise, 5 USC Chapter 43 procedures offer a list of advantages, and they are easy to use.

One aspect of the unacceptable performance procedures that causes a lot more problems than it should comes from the document that must be given to the employee to initiate the evaluation period. So many agencies overwork that particular memo, adding in a bunch of things completely unnecessary to having a legally viable document. Stuff like:

  • Instances of previous unacceptable performance that caused the supervisor to implement an evaluation period.
  • Referrals to EAP, EEO, medical providers (in case there’s a disability), OSC (in case the employee thinks he’s being reprised against for whistleblowing), etc.
  • Lengthy paragraphs as to how important it is to the mission of the agency that the employee perform acceptably, admonitions to work hard and prosper, and promises of tremendous help and guidance throughout the period.

Not only does all this extra language take more time, but it does nothing useful for the agency, and in some instances can even cause more trouble than necessary. Look. You want to initiate a demonstration (aka PIP) period? Easy peasy. Send the employee an email like this:

Bill-

It’s come to my attention that lately you have not been performing acceptably regarding Element 3 of your annual performance plan (attached). I have decided to give you 30 days to demonstrate whether you can raise your performance to an acceptable level. Starting today, here are some things I need you to do.

1 – Keep copies of every document (including emails) you create relative to the tasks that relate to Element 3.

2 – Keep a log of all phone calls and in-person discussions. Note the person involved, the content of the discussion, and whether any follow-up was required on your part.

3 – Meet with me every Friday for the next 30 days to discuss your progress for the week. We will meet in the main conference room at 2:00 PM, and you are to bring the above with you.

If you fail to accomplish three or more Element 3 assignments during the evaluation period, regrettably I am required to initiate steps to remove you from your position. Should you have any questions regarding my expectations of you, please direct them to me at any time.

Those of you with sophisticated computer skills might even be able to squeeze this into an instant message. Or, even a 280-character tweet. This is not hard. In fact, it is embarrassingly easy. If you believe that more is required, you do not understand the law of civil service performance accountability. Hey, that’s OK. Come to our classes. Learn the best way to do this business. Tell the folks on Capitol Hill and in the White House that we don’t need new laws, we just need good training. Hey, you can have us come out to train you. Or, if drafting the above email is just too much for you, we’ll even do it for you.

Don’t let poor performers get you down. FELTG is here to help. [email protected]

The New Definition of Collective Bargaining

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By William Wiley, September 3, 2018

As we talked about in this space last week, a federal district court judge has recently enjoined (stayed, put on hold) major parts of the three Executive Orders that were issued by the White House back in May. The EOs were intended in large part to curb the accomplishments of unions in the civil service. The court’s order declared the EOs to be illegal primarily because by setting out bargaining objectives, the President has effectively foreclosed agency officials from negotiating for anything other than those objectives. The judge concluded that the President’s setting of bargaining objectives was an impermissible interference with a union’s rights in negotiating with management. The court reasoned that by definition collective bargaining requires the parties to be “flexible,” to bargain in a “give and take manner,” and to work toward a “mutually acceptable resolution.”

Well, where did this new definition of collective bargaining come from?

Here’s how the law has defined collective bargaining in the federal sector for over 40 years:

The performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession. 5 USC 7103(a)(12)

Somebody show me the word “flexible” in here. Where does the law require that the negotiators have to both “give and take”? The law says that there should be “effort to reach agreement.” Where does the judge find the definition of “agreement” to mean “mutually acceptable” agreement?

Consider the “mutually acceptable” tweak for a moment. If you tell me I have to sell my used car for a “mutually acceptable” price, I cannot stand firm on my asking price and I have to keep making concessions until the buyer says, “I’ll take it.” Maybe that’s a good way to negotiate if you’re having a garage sale because in reality, you just want the junk out of your garage, and you’ll take any offer just to get someone to haul it away. In comparison, selling your old Porsche is not a yard sale. You have a firm price and it can sit in that garage until your kids have to deal with it during the probate of your will for all you care. You are not letting it go for less than what you consider to be its value.

Collective bargaining in the federal government is not a garage sale. If the union demands free office space in a proposal, management should be free to just say no. Nothing in the law or derived case law says that an agency engages in bad faith bargaining by refusing to concede things to the union, or that management negotiators have to be “flexible” and engage in “give and take.” The court effectively is mandating that if management (or, I guess the logic would hold true for the union, as well) is inflexible and refuses to make a concession, it is violating the law. Well, the law says very specifically that collective bargaining “does not compel either party to agree to a proposal or to make a concession.” The very words “flexibility” and “give and take” imply the making of concessions. The judge in this case has misapplied the law.

The court’s decision concludes that the EOs impermissibly interfere with the union’s rights to collective bargaining. That’s equivalent to saying that the EOs require bad faith bargaining. If you know your FLRA case law, you know that bad faith bargaining occurs, inter alia, when a party refuses to meet, refuses to consider the views of the other party, or refuses to participate in the impasse process. There has never been a single Authority decision that says a party engages in bad faith bargaining by refusing to make a concession, by being inflexible, or by abstaining from giving and taking.

Had the White House issued an EO that directed the Federal Service Impasses Panel how to rule on impasses brought before it, then, in our humble opinion here at FELTG, that would be an impermissible interference with the union’s rights to collective bargaining. The EOs don’t do that. Instead, they lay out objectives to be attained within the framework of collective bargaining consistent with the law. They acknowledge the collective bargaining process and do not attempt to interfere with the conclusion of that process before FSIP, if necessary.

The court’s decision effectively bars the President from providing guidance to agency heads regarding negotiation objectives to be attained through collective bargaining. However, 5 USC 301, read in consideration of 5 USC 305, makes the President, through subordinate agency heads, responsible for “determining the degree of efficiency and economy in the operation of the agency’s activities.” One would think that this statutory scheme allows the President to exercise this responsibility by providing direction and guidance to agency heads regarding the significant adverse effects to governmental efficiency and economy that can result from poorly negotiated collective bargaining agreements. Apparently, this judge does not think so.

There may be some very smart people who conclude that the EOs go too far, that the objectives that the White House has laid out are not good for America and are unfair to the unions. Heck, we might even believe that here at FELTG (although we try not to think too deeply these days). It’s just fine to disagree with the EOs as a matter of policy. However, that does not make the EOs illegal. The judge in this case seems to be saying that because the White House has declared certain policy objectives that the union will not like, the EOs violate law. No, that’s a policy conclusion. Courts should be making legal calls, not policy calls. [email protected]

Big Parts of the Recent Executive Orders Bite the Dust

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By William Wiley, August 28, 2018

As every reader of our FELTG articles knows, on May 25, 2018, the White House issued three Executive Orders directed at the federal workforce. Two of them were intended to curtail union activity in the civil service and the third was designed to increase the ability of supervisors to hold employees accountable for misbehavior and shoddy work performance. On August 25, a federal district court judge in Washington, DC, set aside (enjoined) significant parts of those orders as illegal, AFGE, et al v. Donald J. Trump, et al, DC District Court No. 1:18-cv-1261 (KBJ). In doing so, the judge put a broader spin on the concept of collective bargaining than we’ve ever had before. Here’s what you need to know now.

First, these are the specific sections of the EOs that have been enjoined:

  • 13,836 (Bargaining Obligation) – Sections 5a, 5e, and 6
  • 13,837 (Official Time) – Sections 3a, 4a, and 4b
  • 13,839 (Accountability) – Sections 3, 4a, and 4c

All the other sections were found to be valid. Also, these sections are invalid only as they apply to management’s collective bargaining obligation.

Next, here are the actions called for by the EOs that are no longer valid:

EO 13,836

  • Setting time limits for bargaining
  • Requiring only written proposals be exchanged, not oral
  • Barring the bargaining of the “permissive” topics of negotiations

EO 13,837

  • No official time for unions to lobby Congress
  • No official time to pursue grievances
  • 25% limit on individual use of official time
  • Limit on total amount of official time that can be negotiated
  • No more free office space or free equipment for the union
  • No more expense reimbursement for union officials

EO 13,839

  • No 30-day limit for performance demonstration periods (aka PIPs)
  • No more grieving anything relative to awards

Finally, an overview of the content and rationale of the court’s decision:

Content – Fully half of the decision is a discussion of the court’s jurisdiction and the ripeness of the issues that constitute the union’s arguments against the EOs. If you got an “A” in civil procedure in law school and think that Constitutional law is the cat’s meow, be sure to savor this section. For the rest of the FELTG Nation, you can spend your time with other more relevant matters.

Rationale – Follow this logic chain closely. It contains a leap in concept that could turn bargaining in the Federal Service on its head.

  1. It is the intent of Congress, as expressed in the preamble to the Civil Service Reform Act of 1978, that agencies and unions engage in collective bargaining.
  2. Although an EO is effectively a law for the purpose of collective bargaining, an EO cannot subvert the intent of Congress.
  3. Collective bargaining requires that agencies approach negotiations with an open mind “with every intention of coming to a mutually acceptable result,” demonstrating flexibility in a give-and-take process.
  4. Presidential statements in an EO, no matter whether they are directive or simply suggestive of goals, prevent agency officials from having an open mind. In this case, they effectively declare certain matters to be “non-negotiable.”
  5. Therefore, because Congress intended that agency negotiators have an open mind, and the EOs take away negotiator open-mindedness, those parts that deny flexibility are illegal.

As a separate issue, the decision takes a swing at a principle articulated by former FLRA member Patrick Pizzella. Member Pizzella argued in dissent in several FLRA decisions that the statute’s statement that collective bargaining should be done in mind with keeping the government efficient. The judge in this case dropped footnote 14 to indicate that she felt such an argument to be wrong. She reasons that Congress has declared by definition that collective bargaining creates an efficient and effective government. If I understand her correctly, you cannot have an inefficient or ineffective government if you have collective bargaining. There’s a whole lot of Kool-Aid in that concept, if you know what I mean.

OK, this should be enough to help you keep your head above the water for a while. If you, as management, are currently engaged with a union in negotiations regarding EO mandates, you have to back down from any arguments that your proposals are the result of the directions given in the EOs. For example, you can no longer say to the union, “We demand a 25% cap on official time use by a union official because there’s an EO that says so.” However, there’s nothing that says you cannot say, “We demand a 25% cap on official time use by a union official because excessive official time is bad for America and because a federal pay check should be based primarily on the performance of federal work, not union activity.”

And finally, keep in mind that the heart of this decision is that certain parts of these EOs impermissibly interfere with collective bargaining. The court makes it clear that it is enjoining those parts only and that the remainder of the EOs are valid. Therefore, as the accountability EO applies to both bargain unit and non-bargaining unit employees, it is invalid only as to the bargaining unit employees. The requirement for a 30-day demonstration period for non-bargaining unit employees, for example, remains the directive of the President.

We mentioned above that there’s a scary tweak in the rationale of the court relative to the legal concept of collective bargaining. In some ways, it’s a bigger issue than what has been enjoined here. Check back with us for a discussion of that horror in a later FELTG article. What exciting times!  [email protected]

GAO, Tell Us Something We Don’t Know

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By William Wiley, August 21, 2018

GAO recent released what could have been a Breaking News report entitled “Federal Employee Misconduct: Actions Needed to Ensure Agencies Have Tools to Effectively Address Misconduct (July 2018).” Given the recent kerfuffle about increasing employee accountability through Executive Order and redesigning the civil service through legislation, one would have hoped for some data and recommendations from a neutral outside body as to what can be done to make things better. Unfortunately, although in many ways comprehensive, the report doesn’t really set any pants on fire with its recommendations.

First, a short look at some of the report’s findings that parallel what we’ve been screaming from the FELTG mountaintop for about 20 years:

  • Supervisors should receive initial and ongoing training in discipline and performance procedures.
  • Supervisors should be held accountable for addressing misconduct in a timely manner.
  • Human resources and legal staff should work together with the supervisor to help put together the necessary adverse or performance action.

In addition to these recommendations (which we heartily support, but are nothing particularly ground-shaking) GAO unearthed some helpful statistics when it comes to the current health of our civil service accountability measures:

  1. Less than 1% of the federal workforce receives a suspension, demotion, or termination in any given year.
  2. 25% of employees who are suspended have been suspended before.
  3. Of the group of actions known as “appealable adverse actions” (long suspensions, demotions, and firings), 60% are suspensions.

The thing that’s missing from the report that would be immensely helpful is for SOMEBODY to address this data and make a determination as to whether this indicates a well-functioning civil service discipline program, a mediocre program, or a program that we could not trade for a bucket of warm spit. The White House tells us that it wants the government to be run like a business. Well, wouldn’t it have been helpful to have some comparative statistics from private businesses? How about other countries that have what we would consider to be well-functioning civil services? Does France discipline its “fonctionnaires” at a rate similar to ours? How about the Crown employees in the UK? How often does the Queen act as a Deciding Official in a removal case?

Somebody needs to take this data and turn it into policy. As usual, since nobody else is picking up this responsibility, we here at FELTG jump into the driver’s seat because this bus isn’t going anywhere until policies get crafted and implemented. So here we go. The FELTG take on what to do with the data above:

Less than 1% of the federal workforce receives a suspension, demotion, or termination in any given year. This number seems low by about 80% of what it should be. Several years ago, the MSPB Chairman said that the percent of the federal workforce that was not doing its job is around 5%. That number matches up nicely with what studies of large organizations have shown us is true in the private sector and academic institutions: About 5-7% of the workforce needs to get better or get fired. Given that we appear to be exceedingly low in the number of disciplinary actions taken each year, our FELTG recommendation would be:

  • Mandatory training for all supervisors, HR staff, and attorneys in how to take these actions fairly and efficiently.
  • Performance standards for all supervisors that rate them on their accountability efforts.
  • Targets for HR offices and agency counsel that set the number of employees that should be fired based on a percent of the workforce; e.g., agencies would be expected to hold HR and legal offices responsible for supporting supervisors in disciplining or removing 3% of the workforce each year.

25% of employees who are suspended have been suspended before. If discipline is supposed to be corrective rather than punitive, it makes no sense to impose a second suspension if the first suspension did not correct the bad behavior. Albert Einstein is broadly credited with exclaiming, “The definition of insanity is doing the same thing over and over again but expecting different results.” Our FELTG recommendation would be that agencies who choose to use suspensions in their accountability programs state in their discipline policy instructions that supervisors can suspend employees once, but no more than once, absent exceedingly rare circumstances, and then only with the approval of the agency’s CHCO.

Of the group of actions known as “appealable adverse actions” (long suspensions, demotions, and firings), 60% are suspensions. Long suspensions hurt the agency often more than they hurt the employee. Who is going to do the work of the suspended employee for the three or more weeks he’s not at work? Will the agency hire temporary contractors? Pay for overtime? Or, simply not cause the work to get done? As for demotions, they hardly ever make sense. If you demote an employee, you now have to accept work at the lower grade. If an employee has done something bad enough to warrant a demotion, 95 out of 100 times, removal is also warranted. Executive Order 13839 states that a “suspension should not be a substitute for a removal.” The same could be said for demotions. Our FELTG policy suggestion is for agencies to state in their discipline policy instructions that supervisors are not to use long suspensions to discipline employees. In addition, voluntary demotions can be offered to employees in lieu of a proposed removal, but otherwise should be avoided.

The GAO report also raises a couple of Deep Thought policy issues beyond those we’ve discussed above. We’ll save an analysis of those for another article. [email protected]

 

 

Three Recommendations to the New Board

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By William Wiley, August 15, 2018

Many of you in FELTG Nation are about to see something that has not previously occurred since your birth, and which is unlikely to happen again in your lifetime. Within the next couple of weeks, we in the United States of America are about to witness a once-in-a-life-time event. It happened in 1979, and it is happening again in 2018: The US Merit Systems Protection Board will soon have three brand spanking new members all at once. The only time that occurred before is when the first individuals to become The Board assumed office on MSPB’s zero birthday in January 1979, when it was created by the Civil Service Reform Act of 1978.

MSPB was not designed to have such a quantum shift in membership. The Creators carefully laid out the terms of the three members so that they each overlapped by a couple of years, theoretically assuring a gradual changeover in both case law and procedures. Sadly, that grand plan fell apart these past two years because of the Senate’s refusal to confirm President Obama’s nominee, and then the current White House’s inaction in filling two vacancies for a year and a half, with the term of the third remaining holdover member expiring in the meantime. By June of this year, three new appointees had been nominated to the Senate, with confirmation and the swearing in of all three nominees imminent as of this writing.

Coincidentally, MSPB recently has endured some of the most severe criticism in its 40-year history. For example, its decisions limiting an agency’s ability to reassign employees and to select differential penalties have universally been criticized by agency practitioners. Congress even passed legislation a few years ago to bypass the decision-making authority of the three members, preferring to rely on the judgment of a career staff attorney rather than President Obama’s political appointees (that legislation has now been invalidated by the courts). With all the ongoing activity relative to civil service reorganization, there has even been talk of abolishing the Board altogether.

What a perfect time for some significant changes at MSPB. And who better to recommend those modifications than the world-famous brains here at FELTG. So, buckle up, new Board members. Here comes some of the best advice for change that you’re ever going to get:

  1. Initial decisions should be more focused and structured. As we’ve argued in this space before, Initial Decisions written by the Board’s administrative judges are too long and cover too much irrelevant detail. In one decision we reported on recently, in the appeal of a misconduct removal, the judge did not reveal the charge until page seven. In another decision we addressed, the judge spent useless verbiage describing the color of the trellis on which the marijuana was being grown. Dear Board, the judge’s decision need not be a novel. We don’t need a back story with character development and subplots to figure out if you’re saying whether the guy should stay fired. Generally, every judge’s decision should start off the same way:

On June 15, 2018, the Government Services Administration removed William Wiley based on misconduct. The charges in the removal action were 1) Theft of Government Property, and 2) AWOL, 24 hours. In his appeal, Wiley claims that the removal action was motivated by whistleblower reprisal. I find that although Charge 1 was proven, Charge 2 was not. I also find that Wiley has not proven his claim of whistleblower reprisal. I SUSTAIN the removal.

The New Board should declare that focused, succinct decisions are highly valued. Judges and their supervisors should receive feedback from a centralized authority within the Board (not from individual regional directors) as to how well their decisions conform to these principles and to an established Board-wide format for drafting decisions.

  1. The Board should stop drafting full-text decisions in every appeal, labeling some as non-precedential (NP). This practice was adopted in 2010 in response to a few complaints that litigants (primarily the appellant’s bar) wanted to know why their wonderful, insightful, compelling disagreements with the judge were not adopted by the Board members on petition for review. Well, there are some mysteries in life that simply need not be revealed (e.g., how my mother gave birth to me without having sex). The US Supreme Court doesn’t issue a fulsome decision regarding every petition it receives, and America continues to be the greatest country in history. The Board issued full decisions in only about a third of its appeals until 2010, and the civil service remained strong.

It’s not that full decisions in every case are necessarily bad. It’s just that a) they are not worth the legal effort of HQ staff to produce them, and b) they are confusing to practitioners who the Board instructs can use NPs for reference, but they aren’t really controlling. With apologies to Bill Clinton, that’s like saying that you can smoke marijuana all you want, but you just can’t inhale it. Foolish.

Perhaps NP decisions were worth a try. Here at FELTG, we’re big believers in trying out different approaches. And, we’re also big believers in cutting our losses. Well, we’ve tried out these NPs, and the result is that they are not worth the effort. Dear Board, please consider going back to short-forming most petitions challenging judges’ decisions because most judges get things right, and most arguments contra are just spitting into the wind (with apologies to Jim Croce). Also, you don’t pull the mask off an old Lone Ranger, and you don’t mess around with Jim.

We are a full-service advising organization.

  1. Make it a Board objective to help agencies be successful in removals 100% of the time. No, no, no. That does not mean that you rubber stamp all disciplinary and performance removals that are appealed to you. By golly, there are civil service laws, and you are responsible for holding agencies accountable for adhering to them. The problem is that after 40 years of Civil Service Reform Act standards, you still set aside about one in five removals appealed to you. In other words, agencies screw up removal actions about 20% of the time when you review the merits of an action. This is just wrong. Agencies should get it right every time because agencies should not be firing anyone who does not deserve to be fired. There would be a full national emergency if 20% of the attempted landings of commercial aircraft resulted in failure. Why isn’t the Board at DEFCON 2 trying to make sure that all removals in government are handled properly?

“But Bill. That’s not our job.  We get to stay above the fray, issuing stinging criticism and awarding copious back pay from Our Holy Mount, telling agencies after the fact when they blow it, but not doing much to help them know how not to blow it.”

Oh, really? Have you considered your FREAKING NAME recently? You’re supposed to be protecting the darned merit system, not just critiquing it when it breaks bad. Who better to honor our good civil servants by helping agencies remove bad employees only when it’s warranted?

You are an Executive Branch entity, not a judicial court. You should be down here in the trenches with us trying to make civil service work, not hovering above us criticizing what we do. Join the fight. We can use all the help we can get.

How to get started on this? Easy. Turn your decisions into teachable moments. After you adjudicate the action in your decision, evaluate the agency’s action. Sample last paragraphs:

Lessons Learned – In this case, the agency did a good job of focusing the employee’s poor performance on a single critical element of the performance plan. Had it tried to incorporate several critical elements into the demonstration period, the employee would likely have become confused and unfocused. By selecting a single element, the employee had the best chance to demonstrate mastery of his assignments and the agency’s resources were more focused.

Or

Lessons Learned – For over 25 years, the Board has held that an agency errs when it creates two or more charges based on a single act of misconduct. Doing so here resulted in merger of the two charges in this case, thereby causing mitigation of the penalty to a suspension rather than a removal.

Dear Board, please rethink your role in our civil service. Don’t just tell us when we do things wrong. Tell us how to do things right. Make yourself useful. Nobody likes a critic because they take no responsibility for the work being done. Take responsibility. If we lose our precious civil service because of some of that legislation floating around Capitol Hill, you will have failed in your responsibility to protect the merit systems. If you look at the Board’s official seal, you will see that your protection responsibility goes back to 1883. Don’t let down our fore-parents. [email protected]

Can Federal Employees Smoke Pot?

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By Deborah Hopkins, August 15, 2018

I live in Washington, DC, and on any given day, I’ll smell the unique scent of marijuana several times as I go about my daily activities. During a 6 a.m. run – yep, there’s a strong hint of weed in the air as I run through my neighborhood in NW. I guess it goes well with coffee? Walking to the Metro behind someone who is openly smoking a joint? Happens all the time. A car drives by, windows open, and out wafts the pungent smell of cannabis? You’d better believe it. Recreational marijuana is legal in DC, so it’s everywhere. Literally, everywhere.

  • Fun Fact 1: It’s illegal to sell in DC, but you can give it away for free. Or you can buy something – say, a pencil, for $20 – and with it comes a free joint. There are even smartphone apps for easy ordering. Gotta love those legal loopholes.
  • Fun Fact 2: It’s technically only legal to use in the privacy of your own home, and its use is prohibited in public places such as sidewalks, hospitals, buses, and on federal property. But that’s not really enforced much.

So, anyone who lives in DC is allowed to use marijuana, right? Wrong.

It is illegal for federal employees to use marijuana in any form – smoke, edibles, tinctures, pens, etc. – if they are employed by a federal agency, even if they live in a place where marijuana is legal. So if a federal employee living in DC uses marijuana, it’s very likely she will have to say goodbye to her federal job because she will be removed, most likely for misconduct or suitability reasons.

The same applies for federal employees in the nine states where recreational marijuana is currently legal: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington. (About 20 additional states allow for its use with a medical license.)

There’s proposed legislation in Congress that would change that. The bipartisan bill Fairness in Federal Drug Testing Under State Laws Act (H.R. 6589) was recently introduced by Charlie Crist (D-FL) and co-sponsored by Drew Ferguson (R-GA). Look at that, Democrats and Republicans on the same page about something! In its current form, the bill would bar the federal government from denying employment or making federal employees “subject to any other adverse personnel action” if they tested positive for marijuana while living in a state where its use is legal.

A few weeks ago, Senator Chuck Schumer (D-NY) introduced the Marijuana Freedom and Opportunity Act (S. 3174) which would take marijuana off the list of controlled substances at the federal level. That bill hasn’t gone anywhere yet.

A few more statistics: According to one article I read, about 42 percent of government employees surveyed (includes state and local government) approve of legalizing recreational and medicinal marijuana and about 21 percent think only medicinal marijuana should be legalized. Roughly 11 percent oppose legalizing it in any form.

Now that we’re on the same page regarding the legality of marijuana use by federal employees, I want to answer a few questions that routinely come up during training sessions.

Can a federal agency require a drug test from an employee suspected of being under the influence of marijuana?

There are two categories we need to look at here: drug testing positions and non-drug testing positions.

Drug Testing Positions:

An agency can order a drug test of an employee if the employee occupies a position that has been identified as part of the agency’s drug testing program, and the agency has a reasonable belief the employee is under the influence. Mandatory drug testing is a search and seizure under the Fourth Amendment and must be reasonable to pass constitutional muster. NTEU v. Von Raab, 489 U.S. 656 (1989).

In addition, an employee is generally required to comply with an order to take a drug test first, and to challenge the order after the fact. Watson v. DOT, 91 FMSR 5447 (1991)

In order to sustain a charge of failure or refusal to comply with an order to undergo a drug test, the agency must prove:

  1. The employee was given an order to undergo a test;
  2. The order was lawful (i.e., within the agency’s authority);
  3. The employee failed or refused to comply; and
  4. The failure or refusal was not justified.

Garrison v. DOJ, 95 FMSR 5215 (1995)

Non-Drug Testing Positions:

The agency’s drug testing program has to be designed to balance the needs of the agency relative to the particular types of positions with an employee’s rights to privacy. So if the employee is just a regular old employee occupying a regular old position, he generally cannot be ordered to undergo a drug test. A good agency strategy is that if it suspects drug intoxication in an employee who does not occupy a testing position, offer the drug test anyway. If the employee refuses, that refusal can be used when evaluating the other evidence (bloodshot eyes, smell of marijuana, etc.). There is a “reasonable suspicion” exception that bumps up against constitutional issues, and exceptions if there is an accident in the workplace, but generally an agency wouldn’t even need to go the drug testing route if there is preponderant evidence the employee is under the influence.

Can a federal employee use marijuana as a reasonable accommodation for a disability?

While medical marijuana has been shown to be effective for treatments from stomach ulcers to glaucoma to cancer, it is NOT a reasonable accommodation because its use violates federal law.

What happens if a federal employee doesn’t use marijuana but lives in a home where non-federal employees smoke, grow or otherwise use marijuana?

Just ask the former USDA employee whose husband grew and sold marijuana on their property in California, a state where it was legal to do so. While there was no evidence the employee actually used marijuana herself, residing in a place where it was grown and sold was enough to cost her a GS-9 Forestry technician position.  Avila v. Agriculture, MSPB No. SF-0752-17-0488-I-1 (February 26, 2018) (ID).

Is using marijuana while a federal employee a zero-tolerance, automatic removal?

No. In fact, zero-tolerance, automatic-removal policies are illegal in the government with a few exceptions. As the law stands, just about every executive agency (except the VA) must determine the appropriate penalty by considering the Douglas factors in a case where an employee is using marijuana. Sometimes, we see agencies incorporate last chance agreements with people who use illegal drugs, and those can be very effective. If successful, you retain an otherwise good employee. But if the employee violates the agreement, it’s immediate removal.

Here’s a case example: The USPS removed an employee who violated a last chance agreement that included a provision prohibiting her from working under the influence of drugs or alcohol while on duty. She was sent for a drug and alcohol test after her supervisor noticed she was having difficulty keeping her balance and her eyes were “red and glossy.” She tested positive for alcohol and marijuana. As last chance agreements go, this meant immediate removal for the employee. Complainant v. U.S. Postal Service, EEOC No. 0120130190 (2014).

What if a supervisor believes a federal employee is under the influence of marijuana at work, but doesn’t want to discipline the employee because the employee is much more pleasant to work with when he is high?

I have been asked this more than once, and I laugh out loud every time because I can see why this scenario might be tempting to ignore. That’s between you and your agency, but I bet you know the correct answer: Your job is on the line if you let that one go.

We’ll keep you posted on the proposed legislation if it goes anywhere, but in the meantime, Just Say No. [email protected]