Is There Such Thing as a Triple-Negative?

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By Deborah Hopkins, August 15, 2018

A few days ago I saw a news headline from a well-known legal resource that said, “Judge declines to dismiss suit against ban on transgender people in military” and I had to stop and re-read it a few times as I tried to figure out what it was saying. Is this a double-negative? A triple-negative? And I’m still not sure I understand what the story is about; I didn’t click on the link because I couldn’t get past the headline. Maybe I’m impatient, but I have to think a lot of other people are as well.

If you have to read a sentence more than once in order to understand it, then you have a poorly written sentence. With legal writing it can be tempting to use complex words and long sentences, but the Plain Language Movement is alive and well, and people from appellants to union reps to judges appreciate legal documents that make sense and are easy to read – the first time.

Below are a few of the helpful tips we teach in FELTG’s legal writing classes.

Use F-IRAC

This method gets beaten into our brains in law school, after which we promptly forget we’ve ever learned it. But it’s actually an incredible way to stay organized, to keep the reader moving along, and inevitably lead to the conclusion you’re making.

Facts: What happened?

Issue: What is this about?

Rule: What is the guiding law on this topic?

Analysis: How does the law, when applied to the facts, support my position?

Conclusion: Answers the question posed in the issue.

Don’t Bury the Lead

Legal writing is not creative writing and it can feel a little boring sometimes. But you don’t want people to have to wait until the end of the document to know what the document is about. The biggest reason is that most people won’t actually read the entire document. So do yourself (and your client) a favor and put the important stuff up front.

Don’t Characterize the Facts

It can be tempting to add a little flair to the factual narrative but be careful to use only facts and not opinion. If opinion is interjected, it can damage your credibility and your entire case might suffer as a result.

Example of characterization from the agency side: Supervisor Cook asked the grievant to stop wasting time and to return to his assigned duties. In response and without provocation, the grievant spun away, ignoring the manager’s lawful order, and essentially engaged in an illegal strike.

Example of characterization from the employee’s side: The “temporary” supervisor ordered Mr. Jones to get back to work immediately with no excuses accepted. Trying to avoid an unnecessary confrontation, Mr. Jones stepped away to give the “temporary” supervisor time to cool down.

Rewritten without characterization: The acting supervisor told the employee to return to work. The employee turned and walked away.

Choose Your Verbs Wisely

One little verb can change the whole meaning of a sentence, so be smart about your verb selection and don’t use a thesaurus carelessly.

Take a look at these examples:

  • The witness affirmed that she saw the supervisor touch the complainant’s breast.
    • The word affirmed implies trust.
  • The witness stated that she saw the supervisor touch the complainant’s breast.
    • The word stated, along with words such as said or testified, implies neutrality.
  • The witness alleged that she saw the supervisor touch the complainant’s breast.
    • The word alleged implies doubt.

There’s plenty more we’ll cover in future articles, but this should get you started. In the meantime, have fun being a little boring in your writing. 🙂 [email protected]

The ‘New’ FLRA Is Making Big Changes

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By William Wiley, August 15, 2018

New political appointees, new case decisions, new changes to the law. The answer to the questions below from an alert reader highlight one of the recent changes, in case you missed it:

Good Morning FELTG,

With the recent ruling by the FLRA clarifying the two concepts of Conditions of Employment vs. Working Conditions as distinct, would a low-level agency policy concerning Conditions of Employment still be negotiable or still excluded? Does the level of authority make a difference?

Sometimes good questions take two answers to cover everything. Here’s our first:

Dear Reader –

As this is a very recent and significant change, it will be a couple of years before we understand all the implications. However, our best guess is that it is not the level of the change that is controlling, but the nature of the change itself. Remember, some unions have recognition at a relatively low level in an agency; perhaps just a few offices in a regional structure. If a low-level manager changes a personnel policy (e.g., the manner in which annual leave requests will be considered and the standards by which they will be approved), then in our opinion, that’s a change in a Condition of Employment and thereby just as negotiable as it would be if the agency head made the same declaration.

Hope this helps-

Given the complexity, it’s not surprising that the answer above generated question Number Two, below:

So, a policy, rule, etc. affecting a Working Condition is negotiable, just not vice versa? Thank you, sir, for your guidance.

And here’s our answer Number Two:

After DHS & CBP and AFGE, 70 FLRA 501 (2018) we have to be strictly careful about the phrase we use:

  1. A new policy or practice that will change a Condition of Employment must be proposed to the union and bargained to conclusion by management. The agency may not implement the change until this is done.
  2. These negotiable Conditions of Employment, by definition, affect Working Conditions.
  3. However, once the new Conditions of Employment are bargained, the agency may further change the affected Working Conditions established by the Conditions of Employment WITHOUT new notice and bargaining.

The facts of the case were that the workplace Conditions of Employment had established that work was being done in two different related areas. Management changed the relative amount of work being done so that more work was done in one area and less in the other. The union claimed that this was a change that had to be bargained; i.e., a change to a Condition of Employment. FLRA disagreed, finding that although there was a change to the Working Conditions, there was no change to the Conditions of Employment affecting those Working Conditions. Therefore, no bargaining obligation.

This is a fine line issue our Dear Reader has raised. We will need dozens more FLRA decisions to see more clearly where that line is exactly. Our advice to all you fired-up agency labor relations specialists? Go change something in the workplace without noticing and negotiating and thereby tick off your union so that they file an unfair labor practice. We need the case law. [email protected]

What to Do When a Disabled Employee Declines an RA Reassignment Offer

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By William Wiley, August 15,  2018

Oh, the challenges of trying to accommodate a disability. Does the employee really meet the legal definition of disabled? If his job cannot be modified, is there a vacant position he is qualified to perform? What should management do if the employee refuses a reassignment to a vacant position if one is offered? Here at FELTG, we teach days and days of training each year on the answers to these questions. To give you a flavor of our approach, here’s an answer to a question we got recently from a concerned reader:

Hello FELTG!

I am reaching out to you for some advice on a hypothetical case here at my agency.

If a Bargaining Unit employee were to have a valid Reasonable Accommodation claim that no longer allows him to work in his assigned position, and if that employee refuses to take a new assignment at the agency that recognizes their Reasonable Accommodation limitations, what actions can the agency take against such an employee?

Furthermore, if the employee hypothetically announces that he is pursuing a medical retirement, does the agency have to retain him in a paid status until the medical retirement process is completed?  Would pending EEO complaints also have any impact on such a hypothetical situation?

All good meaty issues. Here’s our response:

Typical situation; easy answer. This very day propose his removal with the charge being Medical Inability to Perform. Attach to the proposal:

  1. The medical documentation that shows he cannot perform an essential function of his job,
  2. A statement from his supervisor that the function is indeed essential and that accommodation in the position is not possible, and
  3. Evidence from your disability coordinator that there are no vacancies in the agency for which he is qualified medically and professionally which he is willing to accept.

EEOC likes it when we get any declination of the other position(s) in writing, but I’m sure your coordinator knows that. Do not include a Douglas Factor analysis along with the proposal because those factors are not relevant if the employee simply cannot perform one or more essential functions.

Do not delay the removal because he has filed for disability retirement. Two reasons:

  1. It may be denied, and then you are in a bad situation, and
  2. By firing him for Medical Inability to Perform you essentially guarantee his application for disability retirement will be granted.

As for pending EEO complaints, they will form a basis for the employee to file a reprisal complaint when you fire him. However, you can’t let that stop you from doing what you need to do. If he is not able to perform work for the agency, you should not keep paying him.

He may file a reprisal complaint, but there will be no merit to it because you will have taken the proper steps to demonstrate that you had a legitimate, non-discriminatory reason for firing him.

Hope this helps.

Best of luck. [email protected]

Emailing Jesus Christ

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By William Wiley, August 7,  2018

A number of agencies have someone like this. He thinks that his personal grievances about the workplace are soooo important that everybody above him in the chain of command must want to know about them. So he emails just about everybody in management with his complaints and allegations hoping to stir someone into action to fix things (and perhaps drop a load of damages and back pay on him). The “To:” block on his emails sometimes contains 50 or more recipients, usually including the President of the United States. In fact, I saw one several years ago that included an email to someone identified as “JesusChrist.”

I tried the address and I received a warning that it was likely SPAM. Maybe I’ll just stick to prayer.

Anyway, here’s a question we got from a member of the FELTG Nation who is having a similar hypothetical problem:

Dearest FELTG:

We [hypothetically] have an employee who raises frivolous claims related mostly to EEO issues (“I saw two co-workers hug and that’s sexual harassment” – that type) up her management chain and they’d like her to stop. This person is a serial EEO filer, which I know isn’t that rare a circumstance, but I haven’t come across any court-approved language that insulates the agency from EEO reprisal claims based on a cease/desist email or other order. Any guidance here?

And here’s our best-guess FELTG response:

Dearest Loyal Reader –

An all-too common frustrating situation with a couple of nasty potential pitfalls. First, OSC has developed some very specific gag order language that we are supposed to use when we restrict an employee’s communications. It’s along the line of your admonition, so follow the admonition with this:

“These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”

Separately, EEOC will find that we have discriminated against an individual if we limit his ability to speak out in opposition to discrimination. I think you can put “reasonable” constraints on how a person speaks out in opposition, but the challenge is that EEOC hasn’t been particularly helpful in helping us know what constitutes “reasonable” limitations.

For example, I think that after the first time, we can tell an employee to stop emailing managers Smith, Jones, and Green about anything, as long as we make it clear that he can speak out in opposition to discrimination in any other forum. However, that’s just a guess as I know of nothing definitive from EEOC about that specifically. Unfortunately, we all know that EEOC tends to find discrimination in the darnedest places, so any constraints we enact have the potential to have a chilling effect on the employee’s rights to oppose discrimination.

[Hopkins Note: You may also want to check out the case Anthony Z. v. Air Force, EEOC No. 0120141988 (June 15, 2016), which says that a supervisor may protect employees from unwelcome conduct even if it references EEO activity. Here it was a complainant who wouldn’t shut up about his EEO complaints and kept trying to get his coworkers to file.]

Thanks for the question. Best of luck.  [email protected]

How to Handle VLTP Misuse

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By William Wiley, July 30, 2018

Some days it seems that every time you set up a system to do good for people, someone will figure out how to misuse it. The civil service program that falls into that category that we’ll cover today is the Voluntary Leave Transfer Program (VLTP).

VLTP is designed to allow employees to donate their accrued annual leave to other employees if an employee needs the leave because of a medical emergency:

5 CFR § 630.901 Purpose and applicability.

(a) The purpose of this subpart is to set forth procedures and  requirements for a voluntary leave transfer program under  which the unused accrued annual leave of one agency officer or employee may be transferred for use by another agency officer or employee who needs such leave because of a medical emergency.

I once received a question from a supervisor (a supervisory attorney, no less) who could not figure out what to do in a situation in which one of her employees was physically bullying coworkers into donating their leave to her so that she effectively had to work only 32 hours each week while getting paid for 40. Folks, if it doesn’t make sense, and is bad for the civil service, then there’s almost always a way to handle it.

Recently, we got the following related question:

Dearest Beloved FELTG, Source of All Civil Service Law Knowledge:

I attended Absence, Leave Abuse & Medical Issues Week in March and am reaching out to you for guidance. I am the Voluntary Leave Transfer Program Coordinator for my agency. We have a situation with an employee enrolled in VLTP. He has been enrolled for in the program since February 2016. He has managed to extend his enrollment every 3-4 months with medical documentation. He has a permanent [medical] condition and has several treatments and sometimes surgeries which maintains his work schedule to be from 15-30 hours per week. He supplements the rest of his income with donated leave. We have tried unsuccessfully in denying extensions based on the fact that VLTP is not to be used as a substitute for disability retirement; that his condition is permanent; that the donated leave program is a short-term program, etc. We have been challenged with an EEO complaint in which he prevailed, and he was allowed to extend his VLTP participation as requested. We would appreciate any advice, guidance or insight that you could shed on this issue. [Sanitized settlement agreement attached.]

And here is our FELTG response, tinged with a bit of anger at how this person is being allowed to misuse the generosity of his hard-working coworkers:

Dear AMI Attendee-

The employee did not prevail in his previous EEO complaint in the sense that anyone ever said what you did was wrong. An agency official simply decided to not defend the agency any longer, and that the most expedient way to resolve the matter was through a settlement agreement. We have no idea why that was done. It clearly was not based on the legal merits of the discrimination claim.

Separately, the settlement agreement says it has no precedential value and applies only to VLTP approved in the past:

“The terms of this Agreement establish no precedent … “

You have every right to discontinue his use of the VLTP program. As he has a permanent disability, he does not meet the criteria for its use because he does not have a temporary medical emergency:

5 CFR § 630.905 Approval of application to become a leave recipient.

(a) The potential leave recipient’s employing agency shall review an application to become a leave recipient under procedures established by the employing agency for the purpose of determining that the potential leave recipient is or has been affected by a medical emergency.

If you continue to allow him to use the program, you are unfairly cheating the other employees of your agency who qualify for the program and would benefit from its temporary use. You should notify him immediately that you are discontinuing his use of VLTP and that if he is unable to report to work, he will have to request use of other leave that might be available. Also, he should be informed who to contact to apply for disability retirement if he believes that his medical condition prevents him from performing his job on a full-time basis. In the future when he does not report to work, if he has no annual nor sick leave, he should be charged as AWOL. The AWOL should then be addressed through adverse action. Nieto v. Treasury, EEOC Petition No. 03A10032 (2002); Murray v. Navy, 41 MSPR 260 (1989).

If you readers are unfamiliar with taking an adverse action in this situation to remove the employee, or you never heard of caselaw like Nieto and Murray,  get yourself signed up for our next Absence, Leave Abuse & Medical Issues Week program, Sept. 24-28 at Dupont Circle in Washington DC. We offer this particular program only twice a year and it almost always fills up. It’s up to management to stop leave misuse, even in situations in which the employee truly has a serious medical condition. [email protected]

Whiners

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By William Wiley, July 24, 2018

Lordy, you would think that the President’s three recent Executive Orders were going to cause the civil service to implode, thereafter leaving a vast wasteland of impoverished traumatized federal employees. I haven’t heard this much whining since I got my head shaved for Navy boot camp (funny note; the whining was all mine). Let’s look at a few complaints I’ve seen in the media about the negative effects the EOs will have on the civil service, and our snarky FELTG responses to each issue:

The 45-day time-limit for amending agency discipline and performance instructions to conform with the EOs is too short.

An agency usually has a single discipline instruction. It can be brought into conformance with the EOs by adding a paragraph at the end like this:

  • Supervisors can consider all past discipline as aggravating factors when deciding what level of discipline is to be imposed for a current act of misconduct.
  • After receiving the employee’s response to a proposed adverse action, the deciding official should issue a decision within 19 days.
  • The notice period for a proposed adverse action should not exceed 30 days.

The grievance instruction can be amended with the following language:

  1. Exclusions: Employees may not grieve performance ratings, awards, incentive pay, or recruitment/retention/ or relocation payments.

The performance management instruction can be amended with the following language:

  1. When an employee’s performance falls to the Unacceptable Level, the supervisor will implement a 30-day evaluation period to allow the employee to demonstrate whether he can perform at an acceptable level.

If the agency has an instruction relative to discipline alternatives or settling cases, those have to be amended to preclude a clean record settlement once a document is placed in an employee’s official file. If the agency has an instruction relative to report filing, that will have to be amended to provide for the new reports called for relative to adverse actions and performance actions.

There. That took me 10 minutes. Most any Human Resources I’ve ever worked with can take it from here in much less than 45 days.

Employees will need more than seven days to prepare a response to a proposed removal because the agency will need more time than that to respond to the union’s request for information.

The agency has no obligation to delay a proposed removal decision until it responds to the union’s request for information. Any agency that does that is foolish.

It takes longer than seven days to coordinate the schedules of the individuals involved in an oral response.

No, it doesn’t. As we’ve taught for many years in our FELTG seminars, the date and time for the oral response should be stated in the proposal notice. That sets the availability of the deciding official. The employee is on the payroll during the notice. Therefore, he can be told where to be when. If the employee cannot find a representative who can be at the set date for the response, he should find another representative. MSPB has never held that an agency commits reversible error by not accommodating a representative’s calendar to schedule an oral response.

Deciding officials need a lot of time to evaluate an employee’s response.

When I worked at MSPB, Board members had to review entire case files on average within two hours. Yes, there was preliminary summarization of the facts and argument by support staff (me), but that work hardly ever took more than four hours. The EOs give the agency’s deciding official 19 days to evaluate existing facts and argument. Juries often do the same thing in a few days. The President is saying that these decisions should be made promptly. In my world, 19 days is a generous period of time to analyze arguments and facts.

There are situations in which the deciding official might have to provide the employee a new response period; e.g., perhaps new information has come to the attention of the deciding official and she plans to rely on it in making her decision.

Then, the 19 day clock resets until the employee has had a final opportunity to respond to the new information.

It takes significant time for a decision letter to be drafted.

Not if the agency representatives have been through FELTG training. An ideal decision letter is three sentences and then the appeal rights section:

  1. On x date your supervisor proposed to me that you be removed from service based on the charges in the attached proposal notice.
  2. You and your representative have responded to this notice, and I have considered your response.
  3. It is my determination that it is more likely than not that you engaged in the conduct described in the charges in the proposal letter, and that your removal is warranted based on the assessment of the Douglas Factors contained in the proposal notice.

The accountability EO shifts the focus of the evaluation period for a poor performer from improvement to demonstration of acceptable performance.

No. For 40 years, the law has said that the evaluation period is for the DEMONSTRATION of acceptable performance, not the IMPROVEMENT of performance. It’s a final exam, not a training class. The EO simply restates what has been the law for four decades. There is no shift.

We don’t know how much legally-required assistance has to be provided during the evaluation period, nor how long an evaluation period has to be to be legally acceptable.

Well, that would be correct IF WE HAD NEVER READ ANY MSPB DECISIONS. The Board routinely acknowledges that giving the employee feedback during the demonstration period satisfies the legal requirement for assistance from the agency. Also, the Board routinely holds that 30 days is generally adequate to evaluate the performance of a poor performer.

And finally, we hear from well-intended members of Congress that the EOs are taking away union rights. Well, no, they are not. They are curtailing benefits that management has ceded to unions through collective bargaining, but only when the law allows for such action; e.g., a CBA expires or is reopened.

In analogy, you may think that your old car is worth $10,000 and you might propose that you be paid $10,000, but that doesn’t mean when I tell you “no,” that I have somehow violated your rights to $10,000. Our friends on the union side have negotiated for significant contractual provisions for the use of official time for union work. However, contracts have term limits, and when those limits are exceeded, the parties are again equal and everything is back on the bargaining table. If Congress had intended that unions have different rights, it certainly could have included those in the law. It did not.

These are exciting times in the world of federal civil service law. Being a part of that world, we here at FELTG are excited, as well; not necessarily because of the specifics of the EOs, but because it is legally fascinating to see an old law like the Civil Service Reform Act of 1978 doing new tricks. After one of our recent webinars on the EOs, a participant told me that Deb and I sounded absolutely giddy. Well, we are. We are giddy that the system is working, that neither management nor unions control federal sector labor relations, that the EOs are simply a tool to be used in collective bargaining, this time to rein in some of the excesses of previous management negotiators. No doubt the next time, the smart guys on the union side will figure out how to take some of it back.

That’s what union/management negotiation in the civil service was always supposed to be: give and take, then more give and take. The White House has not ended collective bargaining, it has re-energized collective bargaining. None of us really knows where we will be with these EOs come this time next year, but one thing is sure. Wherever we are, it will be the result of the process that Congress intended when it invented statutory collective bargaining in 1978. Whiners, if you don’t like that, change the law. Until then, suck it up and learn to negotiate.

Geez, where can someone learn to negotiate in the federal government? Why, my goodness. FELTG appears to be offering an entire week of training on that very topic October 15-19 in Washington DC, just five blocks from the place that issued the EOs. Be there or be square. [email protected]

I Can’t Keep Up with this Stuff

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By William Wiley, July 19, 2018

Recently, you readers got an article from us (me) here at FELTG that purported to describe the MERIT Act that is moving through Congress. Well, as it turns out, it’s moving faster than I can keep up with. Thanks to a heads-up email from a very important reader, we now know that our article described an earlier version of the bill that was subsequently amended.

The most recent version of the bill contains the following significant changes:

Current Law MERIT Act Changes Original MERIT Act Changes Now
30-day minimum notice period prior to a removal. This means that the agency has to keep a bad employee on the payroll at least 30 days after giving the employee a notice that his removal is being proposed. 7-day minimum; 21-day maximum notice period. The period of advance notice of proposed action is reduced to 15 business days. The period of time in which an employee has to respond to a notice of proposed action is reduced to no more than 7 business days. This actually increases the employee’s response period by two days from the current seven calendar days. It reduces the overall notice period from 30 days of pay to 19 days of pay.
30-day maximum time period to file an appeal of a removal to MSPB. 7-day maximum period of time to file an MSPB appeal. The appeal must be made not later than 10 business days after the adverse action is effective. That’s 12 calendar days, for those of you used to counting days that way, down from the current 30; less time to find a representative and draft an appeal.
A goal of 120 days for the MSPB administrative judge to issue a decision on a removal appeal. A firm 30 days for the MSPB administrative judge to issue a decision. No time limits on the Board’s judge to make a decision.
The Board can stay a removal if it believes that whistleblower reprisal might have occurred. No more whistleblower stays. Stays of whistleblower reprisal claims are OK.

If you think that these changes are significant, get a load of these:

  • The ability to use demonstration periods and to remove employees for failing performance during the demonstration period is repealed (5 USC Section 4303). No more PIPs, ODAPS, or any other opportunity to demonstrate acceptable performance.
  • Unionized employees can no longer grieve and arbitrate removals, long suspensions, demotions, RIFs, or furloughs greater than 30 days.
  • Furloughs of 14 days or fewer may no longer be appealed to MSPB.
  • Demoted SESers for poor performance can no longer retain the pay of the higher-level position.
  • SESers may be suspended for fewer than 15 days.
  • Employees who are removed or proposed to be removed for committing a felony will cease to accrue time credit for an annuity during the period the felonious misconduct occurred. Not sure how this will be applied as sometimes it takes just a few minutes to commit a felony.
  • Agencies may recoup award, relocation, recruitment, and retention monies paid to an employee if the agency subsequently determines that the employee engaged in misconduct or unacceptable performance prior to the payment.
  • Probationary periods are to be extended from one to two years.

In addition to the MERIT Act, HR 559, the House Oversight Committee this week also voted out HR 6391. Add the following potential changes to your to-think-about list:

  • Individuals who appeal their adverse actions to MSPB will have to pay a filing fee, refundable if the appeal is successful. MSPB will set the fee amount, to be no more than half of what a filing fee is in district court (currently that would be half of about 50 bucks).
  • The Board can mitigate a removal to a suspension or less only if the removal is so disproportionate as to be wholly without justification. Now, the agency has to prove that the penalty is within the range of reasonableness by a preponderance of the evidence.
  • The Board may grant summary judgment motions and decide the appeal without a hearing. Now, the MSPB judge is obligated to provide the employee a hearing if he asks for one.
  • Appellants no longer have an unfettered right to a hearing on appeal even without a summary judgment motion.
  • Board members can be reappointed once their terms expire. This has always been the case at FLRA and EEOC, but not before at MSPB.

Whew. if you are not blown away by these changes, you must be highly medicated. Some changes would be effective within 90 days of the day the bill becomes law, others have a one-year date for implementation. There are other parts of the pending acts that address secondary issues, but this Executive Summary captures most of the issues you need to know about now.

I am reminded of a day in the fall of 1978 when, as a young HR lad, I sat in on a staff meeting in the civilian personnel office where I had been employed for just over a full year. Somebody passed out copies of the Civil Service Reform Act of 1978 and the attendees all began to discuss it. I, naively, said, “Hey, is this a big deal? Does it really matter that we just got a new civil service law? Doesn’t this kind of thing happen all the time?” Over the ensuing laughter, I was quickly informed that, yes, Virginia, it is a big deal (don’t know why they called me “Virginia”). When Congress makes significant changes to civil service law, the whole government catches its breath.

We, the members of the civil service law profession, just caught our collective breath. And, we should each hold onto it until we see what comes out of the Senate relative to these bills. Or, we faint, whichever comes first. Buckle up, kids; the ride, she will be bumpy. [email protected] 

Don’t Say We Didn’t Warn You; the End Times are Upon Us

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By William Wiley, July 18, 2018

We have been shouting from the pages of our articles and in our classroom seminars (and webinars) that because we are not doing a good job of holding employees accountable, we are on the verge of losing our federal civil service. We leave it up to you, the informed reader, as to whether that is a good thing or a bad thing. But it is a thing nonetheless. And the verge just got a full step closer.

About 18 months ago, HR-559 was introduced by a bunch of Congresspeople in the House of Representatives. If you know how Congress works, members introduce a lot of bills to make sure, in part, that they have something to brag about when they communicate with their constituents. Now, most of those bills never make it to first base. They are assigned to a committee, and the committee discretely fails to act on the submission. Congressional representatives get points for the introduction, and that’s about it. If a bill is ever voted out of a committee, that’s huge, because now it goes to the floor for a vote, a vote that usually agrees with the recommendation of the committee, especially if the bill has many cosponsors. Given that this particular bill sat in committee for a year-and-a-half suggested that it would die the fate of most pieces of proposed legislation, and just fade away.

Well, well, well. Guess who just made it to first base? That’s right, HR-559, the MERIT Act of 2017, was voted out of committee recently. With 55 cosponsors (all Republicans, if you care), it now stands an excellent chance of being adopted by the entire House. That would be second base. Then, it goes to committee in the Senate where historically many House-passed pieces of legislation go to die. However, this year is different from many others:

  • The Senate has signaled that it is geared up to pass legislation and confirm Presidential nominations by significantly shortening its usual month-long August recess.
  • In case you haven’t noticed, there’s a midterm election coming up in November. Look at your three-part government-issued calendar hanging on your wall. That’s just a couple or three pages from now.
  • Congressional Members and Senators love to take recently-passed legislation to the voters near elections to show them that they take governing seriously. What could be more serious governing than creating a law to make it easier to get rid of bad government workers? You know, those federal employees that the public, in general, thinks are over-paid and under-worked?
  • Republicans who support the President, according to the Washington Post, are winning elections over Republicans who do not.
  • The President, in his State of the Union speech, said he wants the law changed to make it easier to fire federal civil servants.

Being a betting person, if I had the opportunity, I would bet that this bill is going to make it to third base (committee passage in the Senate), and then to home plate (adoption by the full Senate) before the end of the year. With that in mind, let’s take a look at how our civil service will change if the MERIT Act indeed does become law:

Current Law MERIT Act changes
30-day minimum notice period prior to a removal. This means that the agency has to keep a bad employee on the payroll at least 30 days after giving the employee a notice that his removal is being proposed. Some agencies have kept employees on the payroll for more than a year after issuing a proposal. 7-day minimum; 21-day maximum notice period. No more extended pay period beyond the removal being proposed. Not only does this change reduce the pay to the employee, it also restricts the amount of time he and his representative have to prepare a response to the proposal.
30-day maximum time period to file an appeal of a removal to MSPB. 7-day maximum period of time to file an MSPB appeal. Less time for the fired employee to find a representative. Less time for the representative to draft an appeal.
A goal of 120 days for the MSPB administrative judge to issue a decision on a removal appeal. A few AJ decisions take many months beyond this goal because of complexity and workload. A firm 30 days for the MSPB administrative judge to issue a decision. If the judge exceeds this time limit, the removal stands. Also, MSPB has to report the failure to Congress where the judge’s next birthday will probably be cancelled.
The Board can stay a removal if it believes that whistleblower reprisal might have occurred. No more whistleblower stays. There really weren’t many of these anyway, but man-oh-man, were they a poke in the eye when they occurred.
Each fact and the ultimate justification for a removal must be supported by a preponderance of the evidence. This means that the firing agency must present evidence to MSPB that it is more likely than not that the removal is justified; i.e., that removal is probably warranted. This is a significantly lower burden of proof than the beyond-a-reasonable-doubt burden required to convict someone of a crime. A removal must be supported by substantial evidence, a lower burden than preponderance. The agency must prove that removal might be warranted, not that it is probably warranted. The Supreme Court has described this evidence burden as a grain more than a scintilla. Most cases we lose are not lost for lack of proof; most are lost for using bad procedures. However, this will help with those where proof is controlling. *

* Here’s an example of how the lower burden of proof most likely would have helped an agency. Several months ago, our friends at the Forest Service fired an employee for engaging in unwelcome sexual conduct after hours in his government-provided housing unit on agency property. The judge who heard the appeal set it aside, reasoning that the agency had not proven that there “probably” is a nexus between the off-duty conduct and his agency employment. In my opinion, and it is worth exactly what you are paying for it, a judge would be hard-pressed to conclude that the agency failed to prove by at least substantial evidence that there “might be” a nexus. Those grains and scintillas are mighty tiny, you know: a jot, a whit, an iota, a scrap, an itty-bitty trace.

So, let’s put all this into perspective. If the MERIT Act becomes law, we still have a protected civil service. However, if in today’s world you believe that on a scale of 1-10, the effort necessary to fire a bad federal employee is about an 8, the level of difficulty under the MERIT Act now drops it to about 2-3. We can still lose cases on appeal if we, for example, violate the employee’s due process rights and the judge acts quickly enough to reverse the removal. The act does not go as far as the law change over at the Department of Veterans Affairs last year where there is now no mitigation of the penalty. Under the MERIT Act, agencies will still need to do a Douglas Factor analysis. Nor does the act take away MSPB appeal rights altogether, as was done to SESers at VA. The core rights of federal employees to be treated fairly remain in place. However, the mechanisms by which an employee can exercise those rights will be significantly restricted.

Keep in mind that this is still only a bill. The Senate is known for taking the edge off of House-passed legislation. Your guess is as good as anyone else’s as to what sausage will come out the other end of this legislating process. However, if the MERIT Act becomes law, whatever you do in the civil service will change significantly. And, it’s because in large part we have not effectively used the existing laws to hold bad employees accountable. Keep THAT in mind as well as you move toward implementing whatever it is that finally comes out of Congress.

[email protected]

What’s Harm Got to Do With It, Got to Do With It? – Or, Determining Compensatory Damages

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By Meghan Droste, July 18, 2018

I apologize/you’re welcome for putting that 80s classic in your heads. It may have been the recent debate in my office about the relative merits of other great 80s artists that made me think of it, but that Tina Turner hit is also somewhat related to the idea of compensatory damages. It’s all about emotions, and broken hearts and how to heal them. Tina Turner’s suggestion seems to be to try to avoid falling in love so that you don’t get your heart broken. Of course, in EEO cases, the harm has already happened. Until someone invents a time machine, we can’t avoid it. What we can do is compensate complainants for the harm. Pecuniary damages are usually straightforward — simply reimburse the complainant for her out-of-pocket expenses — but non-pecuniary damages can be more complicated. How can we really put a price on emotional distress?

Sometimes both the pecuniary and non-pecuniary damages are complicated by preexisting conditions and other factors. The Commission’s decision in Stephanie A. v. Department of Defense, EEOC App. No. 0120161052 (June 5, 2018) lays out some of the important factors to consider. In the underlying complaint, the Commission found the Agency subjected the Complainant to sexual harassment and retaliation. Following the Commission’s first decision, the Agency issued a Final Agency Decision on damages.  The Agency found the harassment “severely affected” the Complainant and exacerbated several health issues for an extended period of time (10 years passed between the initial harassment and the appeal). The Agency determined that the appropriate award was $60,000 in non-pecuniary damages and $3,113.64 in pecuniary damages, along with the restoration of 91 hours of leave. The Complainant appealed the FAD on the grounds that the pecuniary and non-pecuniary awards were insufficient.

In its decision, the Commission noted that “[t]here is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm.”  Although the Commission declined to increase the award to $300,000 as the Complainant requested, it did consider her testimony that she “suffered nightmares, developed stomach ulcers, anxiety, irritable bowel syndrome, and acid reflux.” The record also contained statements from family members who described the significant impact of the harassment on the Complainant’s physical and mental health. The Commission found the harm was severe and long-lasting, and awarded the Complainant $100,000 in non-pecuniary damages.

The Commission also increased the award of pecuniary damages. The Commission found that the Agency improperly reduced the out-of-pocket expenses by dismissing most of the $50,000 in prescription medications as being connected to chronic conditions that the Complainant suffered from before the harassment. The Agency further reduced the award by considering what the Complainant’s insurance covered for appointments and testing. The Commission found these reductions to be improper.   Although the Agency was correct that the Complainant’s conditions began before the harassment, the Agency failed to consider the evidence in the record that the harassment significantly exacerbated these conditions. The Agency could not avoid compensating the Complainant for the notable increase in prescription medications and appointments just because its actions were not the initial cause of the conditions. The Agency also could not reduce its liability based on insurance payments. As the Commission reiterated, under the collateral source rule, an agency may not reduce pecuniary damages awards based on the portion of the full costs an insurance carrier covers. It must instead pay the full cost of the healthcare.  As a result, the Commission increased the pecuniary damages award to $107,381, over $100,000 more than the Agency’s original award.

In a perfect world, we will prevent harassment from occurring and address it immediately, if and when it does occur. In our imperfect world in which harassment still goes on and complainants are still harmed, be sure to do the math correctly when considering an award of damages. After all, the answer to “What’s the harm got to do with it?” can be a lot. [email protected]

Here Comes OPM with Guidance Relative to the New Executive Orders

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By William Wiley, July 18, 2018

So many practitioners have wondered just what the President’s Executive Orders issued May 25 actually mean. We’ve received hundreds of questions here at FELTG, and we’re just a little training company who contracts occasionally with federal agencies. I can’t imagine what level of questioning there has been within the Executive Branch where answers actually carry official weight.

We were all excited to see that OPM, as the leader in human resources management in the federal government, recently (July 5) issued several pages of guidance as to how to implement the EOs. That is, until we read the guidance and then came away with that same empty feeling that comes from eating kale for dinner. Remember that lady years ago in the commercial who wondered, “Where’s the beef!?!” Yeah, I know exactly what she feels like.

First, the general shortcomings in OPM’s “Memorandum for Heads of Executive Departments and Agencies.” Lots of highfalutin words that repeat and paraphrase the EOs, but add little substance that actually helps those of us out here on the front lines trying to make government work. For example, the guidance spends a lot of time talking about the new requirements for reports and team participation. Yes, that’s important stuff. But if I’m a GS-12 Labor Relations Specialist servicing an HHS Indian Health Service clinic in South Dakota, and tomorrow I have to meet with the ticked-off union President to tell her what we’re going to do with the mandates in the EOs, I get little help from the guidance. In fact, on a couple of tough issues, the guidance says that if I have any questions, I should refer them to a local labor relations advisor. Heck, I AM the local labor relations advisor. I’m the one who needs more guidance.

Secondly, and I know this is picky, but the guidance is written by someone who has spent waaaay too much time writing government bureaucratese. Too many vague words written with an undeserved degree of officialness, with no practical guidance about how to go forward. For example, I ran into an abominable sentence with 65 words in it. Come to our legal writing seminars here at FELTG and learn how to write shorter sentences that are easier to understand. I hate officious government bureaucratese. And, so do you.

Third, the guidance from OPM is just flat out wrong in a couple of areas. For example:

  • The guidance says that agencies are required to use FMCS and FSIP when trying to implement the changes required by the EOs. Well, I can’t find that requirement in law. If an agency wants to make a change, and after good faith bargaining it reaches an impasse with the union, the agency is free to notify the union that it will implement its last final offer by some date in the future without invoking either FMCS or FSIP. When that is done, it is then up to the union to either make new proposals to break the impasse or to invoke FMCS and FSIP. There is no statutory obligation for the agency to invoke the impasse procedures.
  • Separately, when discussing the EO that makes it clear that progressive discipline is not a prerequisite to firing a bad federal employee, it adds the additional language that “consideration of progressive discipline is not … permitted when administering disciplinary action.” None of the EOs say that, and if they did, it would be inconsistent with 36 years of law implementing the Douglas factors in penalty assessment. Of course, we have to consider whether the employee has been previously disciplined. The EOs simply say that we are not bound to something less than removal if the employee has not been disciplined before.

Finally, and this is the big one if you’re working in a unionized organization, OPM’s guidance – without citing to any authority for the proposition – concludes that the EOs carry the weight of a government-wide regulation EVEN THOUGH there is good authority that says that an EO carries the weight of law. Here’s the 30-year old authority for the position that these EOs carry the weight of non-negotiable laws:

“As to whether Executive Order 12564 [an EO dealing with drug testing] constitutes law or Government-wide regulation within the meaning of section 7117(a)(1) of the Statute, we find that it has the force and effect of law. Courts consistently have held that executive orders issued pursuant to statutory authority are to be accorded the force and effect given to a law enacted by Congress. Executive Order 12564 was issued pursuant to the President’s statutory authority to regulate the civil service.” NTEU & Army, 30 FLRA 1046 (1988). [The President’s statutory authority to regulate the civil service comes from 5 USC 301 and 302, for those of you new to the business.]

So, what difference does it make if the EOs carry the weight of law or instead the weight of government-wide regulation? Well, it’s a HUGE difference:

  • If the EOs are effectively law, they are controlling NOW without bargaining with the union. We just tell the union that there’s been a change in the law and wait for the union to propose impact and implementation proposals.
  • If the EOs are effectively government-wide regulations, then we CANNOT implement them immediately. Instead we have to wait until to either a) the existing CBA expires, or b) the existing CBA provides for a reopener when EOs are issued or at the midterm. Once the contract expires or is reopened, we can unilaterally implement the government-wide rules at that time, but not before.

Under 5 USC section 7117, government-wide rules and regulations bar the negotiation of union proposals that conflict with them. The only limitation on the superiority of government-wide rules or regulations is found at 5 USC 7116(a)(7). That section makes it an unfair labor practice for an agency “to enforce any rule or regulation … which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed.” Therefore, a government-wide rule is not controlling if there is a conflicting provision of a CBA that was in effect before the date the rule was issued.

I’m trying not to be too aggressive with these things, but here’s my reasoning regarding effective dates of the mandates in the EOs should anyone ask:

  1. OPM and other agencies trying to interpret the EOs argue for maintaining the status quo until an opener occurs in the contract because the EOs are mere government-wide regulations. In addition, some rely on this language for support: “Nothing in this order shall abrogate any collective bargaining agreement in effect on the date of this order.”
  2. Two sentences later, the EO says:

(c)  Nothing in this order shall be construed to impair or otherwise affect the authority granted by law to an executive department or agency, or the head thereof.

(d)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

  1. 5 USC 7103(a)(14)(c) says that management does not need to bargain “to the extent such matters are specifically provided for by Federal statute.”

By case law, FLRA has equated an Executive Order with a law (e.g., a statute) when it comes to negotiability (NTEU & Army, above). It is ridiculous to the point of absurdity to think that a CBA could contain a provision that is inconsistent with law. For example, if Congress were to pass a law tomorrow that prohibited flexiplace, every flexiplace arrangement in the government, including those contained within a CBA, would become invalid immediately. It is inconceivable that the authority in a union contract could be superior to the authority of a federal law.

The two sentences quoted above give management the authority to conform to the law and say that the EO is to be implemented consistent with the law. The law says that executive orders are non-negotiable because they carry the weight of law. Now. They are not negotiable.

I’ve heard that some agency guidance argues that the new mandates contained within the EOs cannot be implemented now because of this language:

Sec. 9.  General Provisions.  (a)   Nothing in this order shall abrogate any collective bargaining agreement in effect on the date of this order.

Regarding the no-abrogation language, the general rule is that management’s decision not to be bound by a CBA provision in conflict with law does not constitute a repudiation of the parties’ agreement. See Office of the Adjutant Gen., Missouri NG and ACT Show-Me Air #93 and Army #94 Chapters, 58 FLRA 418 (2003). If an EO has the effect of law for bargaining purposes, we have a law. If there’s a controlling law, there’s no repudiation. If there’s no repudiation, there’s no abrogation.

Look. Here at FELTG, we’re not saying that this is the right answer. What we ARE saying is that this appears to us to be a legally defensible approach, that the mandatory portions of the EOs are effective immediately, just like the provisions of a new federal statute would be effective immediately, regardless of contrary language in a CBA.

I don’t know President Trump personally. I don’t work for him, and all I know is what I read in the papers. Perhaps I’m mistaken, but he seems to be the kind of person who wants things done when he says he wants them done. On May 25, he laid out some significant restrictions that he believed should be applied to labor relations in the federal government. If I worked for him, I would be doing everything I could to implement those mandates as fast as I could, using every legal approach I could implement with a straight face until someone official told me I was wrong. Of course, that’s just me, and I admit that I am a wimp and that I scare easily. Those who are willing to tell him “no” clearly have greater fortitude than do I. [email protected]