How Specific Does a Legitimate, Nondiscriminatory Reason Need to Be?

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By Deborah Hopkins, July 18, 2018

One of the things we teach in just about all of our FELTG classes is the importance of documentation. Management in the federal government is a defensive business. Because employees can challenge almost anything a supervisor does in the workplace in some forum or other (think administrative grievance, union grievance, EEO complaint, MSPB appeal, Office of Special Counsel, Department of Labor), it is exceedingly important for supervisors to document why they are taking whatever action they’re taking – or not taking.

That’s easy to do in cases of performance or discipline and has become second nature to our FELTG-Certified Practitioners. But when you’re at hearing in 2023, will you really remember why you denied someone’s annual leave request last week? Probably not, unless you documented it when it happened, and have those notes to refer to down the road. That’s why we also strongly advise supervisors to make notes about more than just discipline or performance, because there are certain times when a faded memory fails to meet a legal threshold.

Let’s look at some cases of Intentional EEO Discrimination involving circumstantial evidence. While the events don’t occur in a ping-pong format, the general analysis is this:

  1. Complainant alleges he is treated unfairly in some way because of, or motivated by, his protected EEO category.
  • Examples: nonselection; denial of training; reassignment; low performance rating.
  1. Agency articulates a legitimate, nondiscriminatory reason about the allegation.
  • Supervisors: insert your documentation here.
  1.  Complainant demonstrates pretext. That means the complainant has to show:
  • The agency is lying, or
  • The agency is telling the truth but its action was motivated by discrimination.

Problems arise for agencies when the legitimate, nondiscriminatory reason is not specific. If times, dates, and details aren’t there, that vague response is generally not enough to overcome pretext.

Let’s say the complainant alleges she wasn’t promoted because of her religion. The selecting official, when questioned about why the selectee was chosen and the complainant was not, says, “I don’t remember specifically because it was a while ago, but I am sure I chose the selectee because she was the best qualified. Her interview was really good, and plus the complainant came somewhere pretty low on the score sheet.”

Sounds pretty common, but that selecting official’s statement alone is not specific enough to overcome that presumption of discrimination, so the complainant is probably going to win this case. Does this mean she was definitely discriminated against because of her religion? Nope, there may not even be any actual merit to the claim – but there will probably be a discrimination finding anyway.

As our good friend and FELTG instructor Ernie Hadley writes in his EEO Guide, the legitimate, nondiscriminatory reason offered by the agency “must do more than merely distinguish the particular facts of a situation.” In order to be considered sufficient, it must “articulate some meaningful distinction” which is related to a legitimate aim of the agency.

Below are a few cases to give you a better idea of what this looks like in the real world.

An applicant applied for a job at USPS and, though she was qualified, her application was not forwarded to the selecting official. She challenged this as discriminatory based on her gender. There were no notes, scores, or specific explanations of the scoring process in the agency record. A selection panel member was questioned about why the complainant was not considered, and his assertion that he “could only assume” she did not show she had the skills needed to work at a higher level was inadequate to overcome the allegation of discrimination. Hatcher-Capers v. USPS, EEOC No. 07A60008 (2006). Does this mean she was most definitely discriminated against because of her gender? No. Maybe she was; maybe she wasn’t. But the vague response from the selecting official was not enough not overcome her allegation, so she won her complaint.

In a very recent case, an IT Specialist alleged he was not selected for a supervisory position because of his sex and his age (69). The selecting official had since left the agency, but in an unsworn statement, said that he had chosen the 37-year-old female selectee based on merit. In considering the evidence, the EEOC said the agency record was “bereft” as to how the five candidates were chosen for interviews, nor about the real reasons why the selectee ultimately was chosen. Therefore, the agency did not provide a legitimate, nondiscriminatory reason for its actions. William G v. DLA, EEOC No. 0120160837 (February 14, 2018).

Now that you’ve seen what’s not enough of a legitimate, nondiscriminatory reason, let’s look at a case that shows what is enough.

A USPS employee was terminated after he got into a physical altercation with a supervisor. He alleged that he was removed because of his sex and because he had bipolar disorder. The agency provided a [specific] legitimate, nondiscriminatory reason for its removal action: The physical altercation with the supervisor violated its documented standards of conduct. Hlinka v. USPS, EEOC No. 0120064401 (2008). Easy peasy. That’s how you do it.

So you see, in most cases you’ll be just fine, as long as you have your documentation handy. If you don’t have a notebook now, go buy one and start tracking why you do what you do. As we say at FELTG, we hope you never need those notes, but you’ll be awfully glad you have them if you do. [email protected].

That’s My Story

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By Dan Gephart, July 18, 2018

I’m married to a talented and successful children’s book author. She tells stories for a living. I’m proud of the work she does because she tells the stories of people from whom we don’t often hear. And her stories evoke empathy, which is sorely lacking in our world today.

But published authors aren’t the only ones who tell stories. We all have stories.

In these hyper-partisan times, opposing stories can quickly subsume a federal workplace in conflict.

The stories we carry don’t come in chapters or wrapped in fancy book covers. And they don’t end when you turn the last page. The stories are buried on top of each other deep within us and they shade the way we address everything and everyone. We think our stories are 100 percent truth. But the real truth is that even the most accurate stories we tell have a decent percentage that belongs on the fiction shelves.

Whether you are a supervisor, an HR professional, or an EEO practitioner, you need to understand your own stories, as you navigate those of your employees. We may not agree with the stories we hear, but we need to listen. That’s not to say that every story we hear needs to be validated and acted upon. But you don’t get to truth by shouting over someone.

I find the work of agency investigators to be fascinating. They are looking for answers in some of the most emotionally draining and intellectually challenging situations, whether they are investigating simple misconduct or harassment.

In one of our recent on-site trainings, Meghan Droste presented agency officials a thorough dive into the administrative investigation process. Reviewing the materials recently, the section on interviewing stood out. It was great information for investigators, but something that can benefit everyone. Meghan laid out clearly the difference between interrogations and interviews.

  • While interrogations aim for a confession, interviews seek to gather information.
  • An interrogation is structured. Interviews are free-flowing.
  • And here’s the big one: Interrogations are more speaking than listening. Meghan put the ratio at 95 talking to 5 percent listening. Interviews, on the other hand, are all about listening. The ratio is flipped the other way.

If we approach our discussions with our colleagues, peers, subordinates, and supervisors more as interviews, and less as interrogations, we might be able to better understand each other’s stories.

Anyway, that’s my story. And I’m sticking to it. [email protected]

Tips from the Other Side, Part 7

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By Meghan Droste, July 18, 2018

At the time that I am writing this, I am in the midst of preparing to travel to Japan to teach a course on investigations. In between my packing lists and researching things to do and places to eat, I am also thinking a lot about investigations: What are the best ways to prepare for an investigation?  What are effective interview techniques? All kinds of details that I am looking forward to sharing with my class. As a complainant’s attorney, I spend some time thinking about investigations as well, particularly what information should have been included and what information is missing. Unfortunately, it is not unusual to find that key information is missing from a Report of Investigation.

I wrote about investigations recently in the context of witness interviews. In Mari R. v. U.S. Postal Service, EEOC App. No. 0120160377 (March 29, 2018), the Commission remanded the complaint back to the Agency for a supplemental investigation to include interviews of several witnesses.  While a supplemental investigation may be helpful, it generally is not the outcome I seek when I find the Agency has not done a thorough investigation. Like the Complainant in Ross H. v. U.S. Postal Service, EEOC App. No. 072018001 (May 17, 2018), I often ask for more severe sanctions, including default judgment.

The complaint in Ross H. involved three non-selections. The Agency’s Report of Investigation was unfortunately missing several key pieces of information. It failed to include “application materials and qualifications of the candidates selected for two positions at issue, failed to identify the candidate selected for a third position, and failed to include interview notes for all three positions.” The Complainant moved for sanctions and asked the administrative judge to award default judgment in his favor. In response, the Agency argued that the ROI did have relevant information including affidavits and vacancy announcements, the Complainant did not suffer any prejudice, and the parties could cure the deficiencies in discovery. In support of its argument, the Agency asserted that its failure to identify one of the selectees was not an issue because the Complainant knew who the selectee was. Unsurprisingly, the administrative judge did not find this persuasive and granted default judgment in favor of the Complainant. The Commission upheld the sanction, finding the Agency’s failure to complete a sufficient investigation was “egregious.”  It concluded that default judgment was appropriate “in the interest of protecting the integrity of the EEO process.”

Agency EEO offices should always review an ROI for sufficiency before sending it out.  The necessary documents and testimony will vary from case to case, so be sure to determine what is appropriate for each ROI. And of course, in a non-selection case, be sure to include the names and qualifications of the selectees.

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 me: [email protected]

Why Do We Hide This Stuff?

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By William Wiley, July 18, 2018

Here’s the beginning of a story that recently ran on the first page of the Style section of the Washington Post:

The Washington Post has dismissed a reporter for inadequately attributing material and closely parroting sentences from other publications in articles based on outside news sources. The reporter, [Jane Doe], 26, was let go last week before completing the newsroom’s mandatory nine-month probationary period for new employees. The Post’s editors found that she used without proper attribution reporting by at least a dozen other news organizations in articles she wrote since being hired in October.

The article goes on from here, describing the misconduct in detail as well as giving a bit of history about the (now former) employee’s resume.

Are you blown away by this? Isn’t it illegal or something to disclose the details of an individual’s termination? In fact, we’ve even Jane Doe-ed her real name here in our newsletter. We sure don’t want to reveal names in the federal government.

Well, maybe we should.

Most members of the public, as well as a lot of federal employees themselves, believe that a federal employee cannot be fired. Both Congress and the White House keep trying to make it easier to hold employees accountable for their performance and conduct by loosening the rules. We are on the verge of losing our civil service protections altogether if a couple of outlier Congressional bills become law, bills that would make the federal civil service “employment at will.”

In reality, hundreds of individuals are fired from federal agencies every month. Some are in unions while others do not have the extra protections that unions bargain for their members. Some are probationers, and some are tenured career employees. At least that’s what OPM statistics tell us, statistics that are consistent with MSPB’s annual report of appeals. But how would anyone know that if they were not an insider in the system, familiar with OPM and MSPB reports, or a reader of our beloved FELTG Newsletter?

You’re probably thinking that there must be a federal law that prohibits the disclosure of such information. Why would we make such a big deal out of it if there weren’t? Well, I’ve been looking for 40 years for a law or regulation that would prohibit the disclosure of the identity of and circumstances surrounding terminated civil servants, and I can’t find one. In fact, of the few cases that touch on the subject, the federal courts have come down on the side of mandating the disclosure of such information when it is requested under the Freedom of Information Act, at least for the more senior employees of an agency. When we’re talking about government employees, the balance between the individual’s rights to privacy, and the rights of the public to know about misconduct and unacceptable performance, the public’s need for information usually gets the judicial nod.

The Privacy Act often is referenced as the authority for not releasing information about employee malfeasance. However, that law allows for the release of information for a “routine use.” If OPM government-wide or an agency in its own Federal Register announcement would state that the release of discipline and conduct information by name was a routine use for collecting the record, that would seem to satisfy the legal requirements for privacy.

The salary and cash awards of federal employees are already a matter of public record, available on the web. There’s a relatively mundane need for the public to know that information. We can certainly make a good argument that knowing who has engaged in misconduct harming the government so much that they had to be fired serves a greater public good. Bar association discipline records are available for public review by the name of the offending attorney. Keeping the names of misbehaving federal employees secret enables that person to move on to other positions in which he can repeat his harmful ways. If a federal employee was fired for violent behavior, wouldn’t it serve a public good to make the public aware of who that person is? How about being fired for sexual harassment?

President Trump, through his recent Executive Order, has mandated the centralized collection of a lot of information about civil servants who are disciplined. For the sake of the public as well as for the sake of the federal employees who do good work and who obey the rules, perhaps it’s time that government agencies publicized their discipline and removal actions. If you’re a Big Coward, remove the names, but at least start to get the word out to the broad media that bad employees are fired from their government positions every day for good reasons. Maybe that will reduce the pressure that’s starting to build to do away with the idea of a protected civil service altogether. [email protected]

Use these Clickbait-Type HR Terms for Loads of Fun at Cocktail Parties

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By Deborah Hopkins, July 18, 2018

Sometimes, after a long day, I find myself in a labyrinth of articles intended to draw in the reader with catchy titles or claims – clickbait. Every now and then (though sadly not often) I find something amusing, interesting, or valuable. Of course, given my profession I’m drawn to HR-and-legal-type articles, but I’m not immune to other topics – especially on a transcontinental flight when the WiFi is actually working.

It’s summertime and while there are plenty of important things happening every day, sometimes you just need a little mindless reading, so here for your reading pleasure is a list, in no particular order, of some trendy HR and legal terms that I’ve come across in recent months. You’ll see a loose definition, and beneath it the word or term used in a sentence.

Mainstream – a verb people are using that basically means “to offer for consideration.”

  • “I’ll mainstream this policy draft to the CHCO ASAP.”

Socialize – another trendy word for passing around a document in the workplace, so that important people see it. Often used in conjunction with mainstream.

  • “Let me socialize your resume around the front office to see if anyone wants to mainstream it.”

Upskill – a term for teaching an employee new workplace skills.

  • “Employees who participate in voluntary upskill seminars are more likely to be promoted.”

Retention interview – an interview with a current employee, who has no plans to leave the agency, about why she still works there. (Umm, what?)

  • “I’ll meet you for lunch after I get out of my retention interview with the Director.”

Deep dive background – a number of employers don’t just call references. No, they comb through social media to learn all they can about a potential hire, before scheduling an interview. This is a deep dive.

  • “Before we bring him in for an interview, we need to do a deep dive background on the candidate so there aren’t any surprises.”

Lifeline – a term that signifies the heart and soul of why your organization exists and who is most essential to its ability to achieve the agency mission.

  • “The GS-12 analysts are our lifeline; without them we can’t do anything.”

Mobility pyramid – an organizational model that identifies who is least likely, up to who is most likely, to be willing to be reassigned in the event of a reorganization.

  • “The 2018 mobility pyramid shows that 30% of our workforce is rooted to the headquarters region.”

People and Culture – I saw this one in an Australian HR publication, and it is how a particular company refers to its HR department. In fact, HR departments all over the world are getting rid of the Human Resources moniker in favor of cutting-edge labels like People Operations, Employee Experience, or Partner Resources.

  • “We have a job opening for Assistant Director of People and Culture.”

Delayering – though this looks like a word for slowing something down, it actually means getting rid of hierarchy.

  • “The agency head is considering delayering the federal contractor selection system.”

Induction – a word for what we used to call onboarding or orientation.

  • “The employee will arrive for induction Monday morning at 8:00.”

360-degree feedback – a process of performance appraisal where employees are rated not only by supervisors, but by coworkers, direct reports, and customers too.

  • “We’re running a pilot on 360-degree feedback to see if it improves the employee’s motivation to perform.”

People analytics – turning people into statistics in an attempt to solve grand-scale problems.

  • “As our organization grows, we need to run a predictive people analytics test to determine how many new hires to induct as part of the delayering process.”

And finally …

Contribution – a term I recently saw an agency start using, to replace the word performance. Yes, that’s right, instead of a Performance Plan, the employees are given Contribution Plans, and they are rated not on their Performance but on their Contribution to the agency.

  • “Please meet me at 2:00 Tuesday for your mid-year Contribution assessment feedback meeting.”

 

As the teenagers used to say in 2016, I can’t even.

My brain hurts. Whatever happened to words like apply, interview, and job offer? I guess that’s for greater minds than mine to determine.

And with that, go forth and enhance your vocabulary. [email protected]

Unions are Like Salt

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By William Wiley, July 12, 2018

To me, Federal unions are like salt. A bit is good; too much spoils the whole dish.

President Trump was probably thinking about that when he issued his two union-limiting Executive Orders recently. He didn’t issue an EO banning union activity in any large segments of federal agencies as some would argue he could do by using his statutory authority at 5 USC 7103(b)(1). He didn’t say that unions do bad things. Instead, he primarily said that union activity costs too much.

If you understand collective bargaining in the civil service, you realize that President Trump was being critical of how agency management in the past had been, in his opinion, too generous with unions when negotiating working conditions. For example, his EOs restrict the amount of time an individual employee can devote to union activities while being paid his regular salary (a concept known as “official time,” or in the language of the EO, “taxpayer-funded union time”). No doubt he was responding to the situation a number of agencies have where some federal employees are paid their regular salaries for performing union work 100% of the time. Under the new EOs, individual employees serving as union officials will be limited to no more than 25% of their paid work time being official paid union time. That means that 75% of the year, the employee will have to perform the job he was hired to do, if he wants to get paid.

So how did we get into a situation in which some federal employees are paid their regular salaries for doing union work 100% of the time? Was there a mandate from Congress that this be done? Did the Federal Labor Relations Authority somehow require that this occur? Do the union negotiators have some sort of magical power by which they gave themselves 100% official time?

Nope. Those things didn’t happen. The way that some union officials got the entitlement to get paid their regular government salary for doing full-time union work was that agency management negotiators agreed to it through collective bargaining. Whether or not we agree with the President’s position that individual employees should be performing their regular government duties at least 75% of the time, we have to acknowledge that it’s not solely the unions’ fault that the current situation occurred. Agency management negotiators who signed off on collective bargaining agreements that allow employees to use large amounts of official time are as much to blame as anyone. The new EOs are an attempt to roll back the previous generous management grants of official time to something the President thinks is more reasonable.

There has been a lot in the press about how the EOs’ limiting of official time violates the law and is fundamentally unfair. Unions do important things: e.g., protect employee rights, such as the right to be free of civil rights discrimination and the right to obtain employee benefits like child care facilities. Unions represent the interests of employees in the many workplace decisions that would otherwise be solely left to management to decide, such as flextime rules. Unions need official time for their representatives to do these things.

Well, not according to Congress. When the Civil Service Reform Act of 1978 was drafted, the bill indeed did mandate official time for some union activities, specifically bargaining and interacting with FLRA. 5 USC 7131. However, it specifically DID NOT mandate official time for everything else that union officials need to do. And those “other” activities take up the bulk of official time used today by union officials. Instead, it left the amount of official time for these activities up to the collective bargaining process, to a mutual agreement between union and management negotiators as to what is “reasonable and necessary” official time. One could argue that if these other duties were so important and fundamental to a union’s right to exist, Congress would have mandated that a specific amount of official time be provided to perform those duties. It did not. Therefore, the President’s actions designed to limit official time cannot be said to completely abrogate a union’s ability to provide services to bargaining unit employees, whether we agree with those limits or not.

It’s all about the $$$. Union officials are free under the EOs to perform all the duties they now perform on official time; they just don’t all get paid for all of that time. If the President had issued orders to prohibit union representation of BU employees, we would then have an illegal action. Instead, under the EOs, union officials can still represent. They can be paid for part of that time by the agency; otherwise they must do so after hours or on annual leave or LWOP if they can cut a deal with the agency to use leave for that purpose. In addition, significant time for representing employees must now be spread out among more than one union official. For example, instead of one union official spending 100% of her workday performing union work, she must now spend no more than 25% of her work life on union activities, either on leave or official time. The remainder of union work to be performed during the workday must now be spread among other union officials, all of which must perform their regular government duties at least 75% of the time.

The President is spreading the salt among several individuals. You and I may disagree that this is how unions should be allowed to use official time, or you may think that it is unreasonable to require individuals to either cut short the services they provide as union representatives or provide services on their own time. But our disagreement does not make the EOs unlawful. There are a lot of legal ways to approach the process of collective bargaining. The President has told us how he thinks it should be done. [email protected] 

Let’s Embrace Change

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By Dan Gephart, July 9, 2018

Hello FELTG Nation!

Do you mind if we talk about change?

As I write this, I’m gazing at a For Sale sign that looks oddly out of place on my sun burnt front lawn. This concrete box I sit in has sheltered numerous Gephart humans and four-legged creatures since the new millennium. I’m not just leaving this house, though. I’ll be fleeing the Sunshine State, which has been home since my two adult sons were toddlers, or as we affectionately call them here “gator brunch.”

And that’s not even the biggest change. This week I started a new job for the first time in more than 23 years. Twenty-three years! That was so long ago, Al Gore was still reinventing government and smashing ashtrays.

But I don’t need to tell you about change.

You live with change every day.

I know. As the former long-time program chair of a certain federal training conference that I will not name (rhymes with FDR), I saw how change, along with fear of the unknown, drives people to training sessions.

Change leads to overcrowded classes about transgender employees. It packs rooms of HR professionals trying to figure out how to stop sexual harassment claims. It leaves people willfully standing for three-hour workshops to hear the latest guidance on how to handle reasonable accommodation requests for telework.

And I haven’t even mentioned the concern and confusion surrounding the president’s recent civil service-related Executive Orders or plans to reorganize the federal government.

Change can be stressful, unpredictable, and downright scary.

But change can also be, and often is, good.

Agencies should be more inclusive to all employees, and that means educating yourself about transgender workplace issues. We must hold accountable those managers and employees who practice harassment of any type. You’d better know what to do when an employee asks you for a reasonable accommodation.

These new executive orders, at least the ones dealing with performance, actually provide a great opportunity to more efficiently handle poor performers.

And if you think requests for telework are going to decrease anytime soon, I have some Florida swampland to sell you. No, really, I do. It’s a three-bedroom in a nice family neighborhood. Competitively priced. Give me a call.

Embrace that fear of the unknown. Lean into it. As someone much smarter than I said: Change is the only constant in life.

Change has landed me here at FELTG. This is a dream come true. I couldn’t be happier and more excited to work with Bill Wiley and Deb Hopkins, and the uber-talented group of FELTG instructors, including legends Barbara Haga and Ernie Hadley. These fine people work tirelessly to improve the quality and efficiency of the federal workplace. I don’t use the word tirelessly lightly. I’ve seen their schedules.

I also appreciate the chance to continue working with all of you – the faithful civil servants who loyally serve the taxpayers despite sometimes undesirable working conditions and constantly shifting political agendas, all the while ducking the uninformed insults regularly hurled your way.

Let’s step into this change together. It may be challenging, but nobody said we couldn’t have fun while navigating it. [email protected]

EOs: Effective Now or Effective Later?

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By William Wiley, June 26, 2018

So much has been left to interpretation in the three Executive Orders issued by The White House on May 25. That’s just the way it is when something is issued that is as significant and specific as are the changes mandated by the President. Here at FELTG, we’ve been doing a lot of thinking and responding to questions and comments from the FELTG-Nation regarding the meaning of these things. We’ve even resorted to Deep Thoughts to try to figure them out, and deep thinking is not necessarily our strongest suit. With that said, here’s where our evolving EO-interpretation is today:

Effective Date:  There’s a bedrock principle in our civil society that bills become laws the moment they are signed by the President (or a Presidential veto is overridden on Capitol Hill). That protects our citizens from the retroactive application of a law to conduct that was legal prior to the law, and binds us all to the requirements of the law from the date of signing forward. The only main exception to this rule is if the law itself sets an effective date somewhere in the future. The Civil Service Reform Act of 1978 is a relevant example. Although it was signed by President Carter in October 1978, it was written so that it was not effective until 90 days later.

There’s no reason that this timing principle would not apply to an Executive Order. These three EOs were signed by the President on May 25, 2018. They have been effective since that date as there was nothing in the EOs that set a later overall date. Therefore, if you have been giving unacceptably performing employees generally more than 30 days to demonstrate whether they can perform in an acceptable manner since that date (i.e., you issued a 90-day PIP), you have violated the accountability EO.

“But, Bill. Doesn’t the EO say something about 45 days? Don’t we have until July 9 to put all of this into place?” Well, not exactly. The EO says that agencies have until July 9 to adapt their discipline and performance instructions to the requirements of the accountability EO. To my read, that doesn’t mean that agencies are not bound before then. It just gives you six weeks to put the requirements into writing.

Mandates or Objectives:  I’ve heard a number of representatives on both the management and the union side say that the EOs simply lay out bargaining objectives, that there really are no guarantees that the requirements of the EOs will survive the negotiation process and become part of a collective bargaining agreement (CBA). I’ve even had a couple of interesting discussions with practitioners who take the position that the EOs mandate that nothing in the Orders abrogates current CBA provisions that are contra to the EOs; therefore, they cannot be effective immediately.

If this objectives-only approach is taken by an agency, many of the requirements of the EO may not be implemented for years, maybe never if the current CBA is not renegotiated, but is simply extended into the future. Considering the EOs’ requirements to be opening positions for an agency to take in negotiations, rather than policies to be implemented now, prevents the swift implementation of the President’s instructions.

As we’ve spoken about in our webinars analyzing the EOs (there’s still space in tomorrow’s session), in our opinion there is a defensible argument that the mandates of the EOs are effective now and need not be subjected to negotiations. It is black letter law in our business that a CBA can not contain provisions inconsistent with a law or a government-wide regulation. Almost 30 years ago, FLRA held that an EO carries the same weight as a law for the purpose of collective bargaining. See NTEU & Army, 30 FLRA 1046 (1988) (Holding that shalls were “legal” mandates).

If an agency were to take this approach, the Big Brains over in the labor relations office should be combing through the EOs looking for mandates (e.g., the shalls) and separating them from the simply desirables (e.g., the endeavors). For every mandate found, the agency should notify the union that you are immediately changing your policy to conform to a new law-like EO, and are accepting any impact and implementation proposals the union might choose to make. As the EOs say, “Nothing in this EO impairs the authority granted by law to an agency head.” By law, an agency head has the authority to implement a law without negotiating the substance of the law with the union.

Enforceability:  Many of you wonderful readers have some Big Decisions to make over the next few days. What do the EOs really say? Is that comma important, or not? Do we really want to upset the union by unilaterally implementing the mandates in the three EOs? What if we resist the EOs and choose not to implement them, for whatever reasons? Who’s going to care?

Oh, I don’t know. Maybe the PRESIDENT OF THE UNITED STATES? Maybe whoever it is who heads up your agency, who works for the President? Please, oh please, invite us to the meeting in which you tell your political overlords that you advise keeping the union officials on full official time out of fear that the union might file an unfair labor practice charge if you unilaterally act to implement the EO and reduce official time use. That meeting, in comparison, will make cage fighting look like an elementary school game of dodgeball.

You probably have noticed that a number of unions have filed lawsuits to prevent the implementation of these EOs. At least one union has asked a court to issue an injunction to stop EO implementation, something courts usually do only then there is the danger of immediate irreparable harm. Well, if these EOs simply laid out bargaining objectives, issues that ultimately would be resolved through the collective bargaining process, there wouldn’t be any immediate harm, would there? Maybe our friends on the union side are onto something.

EOs aren’t like laws that once they are issued become static and open to varying interpretations. These EOs express the wishes of a single President and have his signature at the bottom of each one. If you’re confused as to what they mean, just ask the President. He has a White House Counsel who speaks for him on things legal. He has a Justice Department that implements his legal wishes. He has a Director of OPM who is supposed to understand what the President wants and then implement regulations to carry out those wishes. If you have a telephone, you don’t have to guess at the answers. Call the guy who issued the darned things and ask, “Hey, what’d you mean in that Union Time EO? Are we supposed to implement that puppy immediately or just try to bargain for those restrictions?” Just be sure to phrase your question so that he can respond in 280 characters, or fewer. That will ensure you a speedy response.

So, get busy. And cancel those plans for a big July 4th holiday vacation. If you’re an agency’s employment lawyer or Human Resources specialist, you have precious little time left to do what the President has told you to do.

Or, to tell him you’re not going to do it. Whooo, doggies; I’m going to bring my first aid kit for that meeting. [email protected]

James Comey was not Insubordinate

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By William Wiley, June 19, 2018

More precisely, the 500+ page OIG report issued last week regarding possible misconduct at DoJ does not establish Comey’s “insubordination.” As everyone who has attended the FELTG MSPB Law Week seminar (next offered September 10-14 in Washington, DC) knows, charges of workplace misconduct have specific legal definitions. The various aspects of a charge definition are known as “elements” of the charge. To prove a charge like insubordination, an agency would have to prove all the following elements:

  • The willful and intentional refusal,
  • To obey an authorized order of a superior,
  • Which the superior is entitled to have obeyed.

Redfearn v. Labor, 58 MSPR 307 (1993)

The report concludes that Comey acted in an insubordinate manner when he took it upon himself to release certain information without telling his supervisor about an investigation into Hillary Clinton’s use of a non-government computer for government work. That, indeed, may have been a bad thing to do. Perhaps (and here at FELTG, we have no dog in this fight) what he did demonstrates poor judgment. However, I can find nothing that says his superior, Attorney General Lynch, had ordered him not to do that. In fact, the executive summary of the report states just the opposite:

While Lynch asked Comey what the subject matter of the statement was going to be (Comey told her in response it would be about the Midyear investigation), she did not ask him to tell her what he intended to say about the Midyear investigation. We found that Lynch, having decided not to recuse herself, retained authority over both the final prosecution decision and the Department’s management of the Midyear investigation. As such, we believe she should have instructed Comey to tell her what he intended to say beforehand and should have discussed it with Comey.

The report concludes that Comey’s supervisor made a mistake by not giving him an authorized order to tell her what he was about to do. She most likely would have been entitled to have that order obeyed had she given the order. However, she did not. Based on these facts alone, Comey cannot be held to be insubordinate for failing to obey an order that his superior did not give.

You, our beloved reader, might be sitting there thinking, “Oh, Bill. You’ve gone off the deep end again. This is being very picky about a trivial hair splitting.” Well, Smarty Pants, just try running this series of events past judges at MSPB and see how quickly they set aside your charge of Insubordination. You don’t got no stinkin’ order? Then, you don’t got no stinkin’ insubordination. Black letter law. Case closed; e.g., Redfearn, supra.

Had the DoJ OIG office called us for advice on how to frame Comey’s misconduct (888-at-FELTG; operators are standing by), we would have recommended charging “Lack of Candor.” The elements of that charge are:

  • A failure to disclose something that should have been disclosed
  • To make a given statement accurate and complete.

Hoofman v. Army, 2012 MSPB 107

And according to a recent decision out of the Federal circuit, Lack of Candor must be “knowing” so there’s your third element. Parkinson v. DoJ, 815 F.3d 757 (Fed. Cir. 2016)

That charge squarely places the responsibility on Comey to tell the Attorney General what he was about to say to the press. This way, he is being charged with something he had the obligation to do, not being charged with something based on what his supervisor should have done.

There are references in the DoJ OIG report to “well-established Department policies” that Comey failed to follow. Well, that’s fine. Charge him with not following agency policies. However, failing to abide by agency policies is NOT insubordination.

Which leads us to a final point we have made before in our FELTG articles. Agency OIG offices do hugely important work. They are filled with smart, hard-working investigators and lawyers who are trying to do the right thing. However, with rare exception, they are not filled with civil service law experts. That’s not a problem when they are called upon to investigate suspected criminal misbehavior, as is often the case in OIG investigations. But, when it comes to investigations of workplace misconduct in a federal agency, the world would be a better place, and their work would be more legally precise, if OIGs involved a specialist in civil service law in their report development.

James Comey may have done things he should not have done. We leave those decisions to individuals at higher paygrades than we hold here at FELTG (GS-zeros). However, any GS-5 trainee in human resources who has attended our FELTG seminars will recognize that Comey’s actions cannot be framed as a charge of Insubordination.  [email protected]

Handling Social Media Threats from an Off-Duty Employee

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By Deborah Hopkins, June 12, 2018

Here’s an email we received after a recent training program on managing employee behavioral health issues in the federal workplace:

Dear FELTG, thank you for an excellent presentation today on behavioral health issues. I had a question about how we work with an employee who is delusional, in danger of being harmed and not in the workplace at present. How do we handle calls/texts on our personal cell phones and social media (such as Facebook) from such an employee?  What is our responsibility as an organization with this situation?

And here’s the response to the hypothetical scenario above:

Dear FELTG Attendee,

Thanks for the email. Regarding the “legal” side of this hypothetical case: if the person is a current employee and the texting/messaging/calling is causing a disruption in the workplace (there’s your nexus), you can give a direct order to the employee to stop contacting co-workers on their personal phones and social media accounts. Then, if the behavior continues, you can issue discipline for the violation. As far as an appropriate penalty, that’s directly related to the level of disruption the texting/calling causes. (Unless you’re in the VA, in which case you can fire the employee and not worry about a judge mitigating the penalty to something less than removal. I’m not necessarily suggesting you do that – but it is the new law for the VA.)

If you want to be extra careful, when you give the employee the written directive to stop contacting people after hours, you’ll include the gag order language below – if you don’t want to give the Office of Special Counsel any reasons to get excited.

“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.”

Discipline early, before it gets any further out of hand. So, there’s the legal side. On the clinical side, here are some thoughts on dealing with someone who may have some behavioral health issues:

  1. Be careful about what you say to the employee so you don’t set him off, and if feasible, direct the employee towards professional help or EAP. Also, save the conversations/texts that are being sent, should you need them as evidence later on.
  2. If things escalate and the person does not listen to your orders to stop texting/calling/messaging, you can contact your local behavioral health crisis hotline and provide them with all the information they have so a mental health professional can intervene.
  3. Also, if the employee is making violent threats towards others you can call the local police and/or mental health crisis line. If you feel the employee is in immediate danger or is reporting thoughts to kill himself, then call 911 and the crisis line as they will work collaboratively.

Mental and behavioral health issues are no joke, so whatever you do, don’t ignore them.

If you want more, come to our upcoming class Handling Federal Workplace Challenges: Dealing with Behavioral Health Issues, Threats of Violence, and Coworker Conflicts July 17-19 in Washington, DC.

[email protected]