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]

Religious Objections to LGBT Rights: What Prevails in the Federal Sector?

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By Meghan Droste, June 12, 2018

As you may know, June is Pride Month—a time to reflect on the history of the LGBTQ rights movement and to celebrate the advances we have made.  The timing is connected to the 1969 Stonewall riots in New York, which were a significant tipping point for the movement.  In addition to the upcoming parades and parties, LGBTQ rights are also in the news right now because of the Supreme Court’s recent decision in the closely watched Masterpiece Cakeshop v. Colorado Civil Rights Commission case.  Although the federal government generally is not in the business of baking cakes—please send me edible proof if I am wrong—the underlying issues in Masterpiece Cakeshop are related to issues that we might encounter in the federal sector.

Masterpiece Cakeshop centers on a Colorado baker’s decision not to bake a wedding cake.  Baker and shop owner Jack Philips refused to provide any custom cake for the wedding of same-sex couple Charlie Craig and Dave Mullins.  In response, Craig and Mullins filed a complaint with the Colorado Civil Rights Commission.  The Colorado Anti-Discrimination Act (“CADA”) prohibits discrimination in the provision of goods or services on the basis of sexual orientation (and several other categories), and Craig and Mullins asserted that Philips’ refusal fell squarely within this prohibition.  Philips argued that baking and decorating a cake for the wedding of an LGBTQ couple would amount to conveying a message of support for same-sex marriage.  He objected to same-sex marriage on religious grounds and therefore asserted that the application of CADA to him interfered with his free exercise of religion.  The Supreme Court ultimately decided the case on vary narrow grounds, focusing on the way the Colorado Civil Rights Commission reviewed and analyzed the case, and not on whether religious beliefs can excuse violations of anti-discrimination law.

Although the Commission has not issued a decision on the rights of cake bakers in the federal government, it has considered claims of religious discrimination by those who object to the celebration, or even discussion, of LGBTQ rights in the federal government.  Two decisions from recent years illustrate this point.  In Complainant v. Environmental Protection Agency, EEOC App. No. 0120150930 (May 19, 2015) and Felton v. Environmental Protection Agency, EEOC App. No. 0120161612 (July 12, 2016), EEOC addressed complaints that appear to be raised by the same employee.  This employee asserted that the agency discriminated against him on the basis of religion when he received an agency-wide email that referenced Pride Month, and when he received an agency-wide email regarding a voluntary training on civil rights and the LGBTQ community.  He had previously requested that the agency not send him emails regarding LGBTQ topics and claimed that the agency’s failure to abide by this request was a failure to provide a religious accommodation.  The agency dismissed his complaints for failure to state a claim.  The Commission upheld these dismissals, finding that the complainant was not an aggrieved person for purposes of Title VII.  The complainant did not suffer a loss, the emails were not sufficiently harassing to state a claim, and there was no allegation that receipt of the emails in any way burdened the exercise of his religion.  At the end of the day, the Commission was not persuaded by the assertion that having to acknowledge the existence of LGBTQ people and their rights represents a harm to someone, even if it conflicts with an employee’s religious beliefs. [email protected]

Are the New Executive Orders Legal and Do They Require Immediate Changes?

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By William Wiley, June 12, 2018

As most everybody knows by now, last month President Trump issued three Executive Orders aimed at the world of federal civil servants. Here at FELTG, we’ve already published an article on the effect these EOs have on holding employees accountable for poor performance and misconduct. We’ve also described for you the new limitations placed on collective bargaining; changes that reduce the union’s use of official time, the scope of grievance procedures, and the options management can offer to the union during negotiations. Yes, it’s a new world out there these days, whether it’s a “brave” new world is yet to be determined.

In this article, we address a couple of issues related to these EOs:

Legality

At least two federal unions have filed suits in federal court to stop the implementation of the EOs. Although we’ve not seen all the pleadings, we have read what has been reported in the media as the rationales for the objections. With all due respect to our friends and the smart lawyers who are supporting those suits, we don’t see a lot of merit to them. For a lawsuit to be viable, there must be evidence of a breach of a law or contractual agreement. We’ve looked hard, but we just don’t see any of that. For example, one suit was reported as claiming that the EOs violated 5 USC Chapter 43 (performance-based removals) and cited to language alleged to come from that law. Yet when we read the cited reference to the statute, it does not say what the suit claims it says. If these suits are to be successful, it’s going to take some hard work and creative advocacy to get there.

Other arguments advanced by the suits make arguments that do not make much sense. For example, because the law does not set a maximum period of time for a poor performer to demonstrate acceptable performance, it is illegal for the President to set a time limit. Or, because the law provides that official time for union officials to perform union duties can be negotiated, it is illegal for the President to limit how much time can be negotiated. I’m never the smartest lawyer in a room, but I have not seen much so far to support a conclusion that the EOs are illegal.

So far, the unions haven’t filed for a temporary restraining order to prohibit implementation of the EOs. One might think they would do that if they felt they could argue significant irreparable harm.

The more practical front-line issue has to do with the requirements the EOs place on collective bargaining. Several “experts” have been quoted in the media as describing the requirements of the EOs as bargaining “objectives” rather than as Presidential “mandates.” Following that logic, the President can require management bargainers not to provide free office space to unions through collective bargaining, but practically speaking, it will be up to the FMCS/FSIP stages of negotiation as to what will eventually be the language of the CBA. Those who think this way are betting on the actions of FSIP to decide what the federal workplace should look like, not for the President to make those decisions through executive fiat.

Well, here at FELTG, we are placing our bets a bit differently from those experts who represent unions and employees. Here are some well-established legal principles that have been around for 30 years or so that guide collective bargaining in the federal civil service:

  1. A CBA cannot contain a provision inconsistent with federal law. If a union proposes contract language that would provide employees a benefit inconsistent with law, the management response should be, “non-negotiable.” Even if the agency wanted to negotiate something different from law, it cannot do it. It is beyond debate that CBAs cannot be inconsistent with law. 5 USC 7117.
  2. When laws change during the existing term of a CBA, the agency is bound immediately by that law. It may not bargain the law. It must adhere to the new law immediately, with no obligation to refrain from implementing the law until related impact and implementation bargaining is completed. (If these concepts are foreign to you, come to our FLRA Law Week seminar, October 15-19 in Washington, DC. They are as basic as the Earth.)
  3. Many years ago, FLRA ruled that a Presidential Executive Order was equivalent to a law for collective bargaining purposes. NFFE and Army, 30 FLRA 1046 (1988). Although not a heavily litigated issue, this case – unless it is overturned – will be FLRA’s guiding light when it is called upon to adjudicate ULPs related to these new EOs. Although FLRA members cannot be removed from office during the five-year term they are serving, with these EOs they have been publicly put on notice of how the President (the guy who hired them) wants to see collective bargaining work in the civil service.

If we accept that an EO is equivalent to a law, we need to review these EOs closely to parse out what they REQUIRE as compared to what these EOs SUGGEST; the old “shall” vs. “should” analysis. When we do that, here’s a sample of what we come up with as EO mandates:

  • Performance ratings, incentive awards, and recruitment/retention/relocation payments are to be excluded from CBA grievance procedures.
  • Progressive discipline is not required prior to firing an employee.
  • Management must be free to use either Chapter 75 or Chapter 43 to fire a non-performer (If you don’t know what these are COME TO OUR SEMINARS! Ignorance is OK; stupidity is not.).
  • Generally, performance demonstration periods (i.e., PIPs) are to be no longer than 30 days.
  • Clean record agreements can no longer be used to settle cases.
  • Internal agency discipline and performance policies have to be rewritten to conform to the EOs by July 10.
  • No free office space for the union.
  • This is an odd one: Agencies are to “endeavor to exclude” removals from CBA grievance procedures. If the EO had just said “exclude,” that’s an easy-to-apply mandate. However, when it says “endeavor” to exclude, does that mean the agency just has to try – that the outcome of trying is left up to some other process; e.g., collective bargaining? Who knows?
  • Agencies must renegotiate any CBAs in conflict with these EOs.

There’s a bit more about filing reports and acting quickly in response to OPM regulatory changes. There’s also a collection of “shoulds,” things that agencies ought to do, but are not required to do; e.g., limit the notice period of a proposed removal to the statutory minimum of 30 days. When it comes to mandatory collective bargaining to bring existing CBAs into conformance with these new EOs that are equivalent to law, it’s the “shalls” that drive the scope and timing of bargaining.

Most of this has to be implemented by July 9. So, what should you be doing TODAY? Well, you need to approach your to-dos from two different perspectives:

Non-bargaining Unit Changes – All of your discipline and performance instructions should be reviewed in light of the mandates listed above. For example, does your agency policy say that PIPs can be any reasonable length? It should now be rewritten to say that generally, demonstration periods (not improvement periods) are to be no more than 30 days. This is a mandate in the EOs.

What about the non-mandatory shoulds in the Eos? Will you rewrite your discipline instruction to state that, for example, the 30-day notice period for removals will not be extended beyond 30 days? What happens to you if you don’t adopt the shoulds as policy for your agency? Oh, I don’t know. Maybe ask your Secretary how he would like to tell President Trump that you’re rejecting the EO’s suggestions on how these policies are to read. And if you’re going to do that, may we come along to watch? We’d really like to see how the President takes that.

Bargaining Unit Changes – Even though a number of our friends from the union side have opined that these EOs contain, at most, bargaining positions, here at FELTG we think that may not be correct. If an EO carries the weight of law relative to collective bargaining (see NFFE and Army, above), and if agencies must act promptly to bring CBAs into conformance with new laws if they are in conflict, then one might conclude that these EO mandates are now effective and need NOT be bargained. If this is correct, agencies should be amending their CBAs today and inviting unions to initiate I & I bargaining relative to negotiable parts of these changes.

Whooooo, doggies. Is this going to be exciting, or what? Better put a cover over that fan because there’s going to be a lot hitting it.

And we’re not done.

The “Independent” Agencies

If you’re just a regular old agency official, you have your Presidential marching orders. Now get out there and rewrite those instructions and bargain with the unions, as necessary.

But what if you’re senior management in an independent (oversight) agency? We’ve already talked a bit about FLRA’s role and precedence; how about the others?

FSIP – Assuming that parts of these EOs cannot be unilaterally implemented by management and will have to be negotiated with the union, any bargaining impasse that results will have to be resolved by the seven members of the Federal Service Impasses Panel. The Panel members are political appointees, having been appointed by President Trump, and who serve at his pleasure. If they are considering two counter-proposals, one of which embodies the intent of the President’s EOs and the other which does not, how do you think they will rule? Yep, that’s our prediction, as well.

MSPB – Some of the things that the EOs are trying to “fix” are prior declarations in rulings of the US Merit Systems Protection Board. For example, it was in 2010 that MSPB that came up with the stupid Terrible Trilogy comparator employee craziness that said that discipline had to be consistent throughout an agency, not just within the chain of command invoking the discipline. The EOs say that this is no longer the rule, that lesser discipline given to a comparator does not prohibit the removal of a different employee. Unlike the members of FSIP, the Board members do NOT serve at the will of the President. Once sworn in, they can be removed only for inefficiency, neglect of duty, or malfeasance in office, 5 USC 1202(d). Will they conform their decisions to the principles espoused in the EOs? Will the President require that potential nominees promise to do that or he will not nominate them? Will the Senate confirm nominees who have promised the President to conform their decisions to his orders?

Whoooooo, doggies.

So many questions, so many opinions. We admit to not knowing a lot of the answers here at FELTG, but we swear on a stack of CFRs, we will do the best we can to keep you up on changes, suggesting strategies and options for you to consider, and maybe even predicting a few things that eventually will come true. So, pay your FELTG dues, renew your subscription to our newsletter, and buckle your seatbelts. The next several months are definitely going to be a bumpy ride. [email protected]

The Two Sides of EEO Reprisal Protections: Participation and Opposition

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By Deborah Hopkins, June 12, 2018

Reprisal is a word that strikes fear in the hearts of supervisors everywhere. Indeed, we’ve seen a few cases where seemingly-minor behaviors were found to be EEO reprisal. For the purposes of this article, we’ll define reprisal as adverse treatment of an individual who engages in protected activity. Adverse treatment is much broader than adverse actions; it applies to any undesirable treatment, including things that would not constitute personal injury under EEO antidiscrimination statutes.

A lot of federal supervisors and advisers know that the law protects people for participating in the EEO process in any way, but many miss the other side of protection: the opposition side of EEO activity. Let’s look at both. But first, as we do here at FELTG, let’s look at the law.

It shall be an unlawful employment practice for an employer to discriminate against any employees or applicants . . . because he has opposed any practice made unlawful by this subchapter, or because he had made a charge, testified, assisted or participated in an investigation, proceeding or hearing . . .

 42 USC § 2000e-3 (emphasis added).

Participation Clause

The following things are considered participation in protected EEO activity, and employees who engage in these activities are protected from reprisal.

  • Contacting an EEO counselor
  • Filing a formal EEO complaint
  • Testifying at an investigation or hearing
  • Providing documents to a complainant
  • Requesting a reasonable accommodation

There probably aren’t any surprises on that list. However, the participation clause of the law goes much further, as we see in the case law. Read on.

  • Filing a frivolous EEO complaint is participation, as is contacting an EEO counselor with no intent to file a complaint. Hashimoto v. Dalton, 118 F.3d 671 (9th 1997), cited in EEOC Compliance Manual §8-11(C)(2).
  • A witness doesn’t need to actually testify in order to be protected. Being named as a potential witness is participation for the purposes of reprisal protection. Green v. Navy, EEOC Appeal No. 01964701 (1997).
  • Representing a complainant is participation, and action taken against a representative aggrieves the complainant and may be considered reprisal. Larson v. Secretary of Navy, EEOC Appeal No. 01983075 (1999).
  • Even having a close association with individuals who file complaints is a protected activity. The seminal case on this involved an engaged couple. The company fired the complainant’s fiancé in reprisal, and the Supreme Court said, “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” We don’t know the extent of association, though; the Court declined to “identify a fixed class of relationships for which third-party reprisals are unlawful.” Best practice: don’t push it. Thompson v. Northern American Stainless, LP, 131 S. Ct. (2011).

There is a limit to the participation clause, though: an employee can’t go storming off workroom floor in search of counselor in defiance of supervisor’s order, and if he does, disciplining that employee is not reprisal for protected activity. Butler v. Postmaster General, EEOC Appeal No. 01872877 (1988).

Having fun yet?

Opposition Clause

The EEOC Compliance Manual, 8–II(B), tells us that an individual is protected from reprisal if that individual explicitly or implicitly communicates to her employer a belief that an activity constitutes a form of employment discrimination under the statutes enforced by EEOC. This opposition must strike a balance between a supervisor’s need for a stable and productive workforce, the rights of individuals to oppose discrimination, and the public’s interest in enforcement of EEO laws.

Frivolous opposition is not covered, though. The Opposition Clause has three requirements, and an employee must meet at least one. An employee sets forth a proper claim if:

  1. A challenged employment practice violates Title VII;
  2. She possessed a good faith, reasonable belief that it did; or
  3. She possessed a subjective, good faith belief that Title VII was violated by the practice.

Mattern v. Postmaster General, EEOC Appeal No. 01850054 (1986).

So, a comment such as an employee’s vague assertion, “All these agency managers are a bunch of white supremacists” is likely not enough to trigger the protection of the opposition clause.

But, examples of covered opposition include specific complaints about employment practices to:

  • Managers or supervisors
  • Union officials
  • Coworkers
  • Reporters
  • Congresspersons

So, hopefully now you know more about reprisal. For more on this topic, join us for EEOC Law Week offered next September 17-21 in Washington, DC. [email protected]

Understanding and Supporting the Bipolar Employee

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By Shana Palmieri, June 12, 2018

Have you ever noticed an employee or coworker who seems to have severe mood swings? I’m not talking about normal good day/bad day fluctuations, but episodes where the person is so hyperactive you can’t slow him down, or so depressed that she won’t even bother to show up for work? There’s a chance that this person might have one of the Bipolar Disorders.

Bipolar Disorder(s) are estimated to impact 2.8% of the adult population in the United States in any given year. The affected individual typically starts to experience symptoms of Bipolar Disorder in their early to mid-twenties, the typical age at which young adults are transitioning from education into the workforce.

What is Bipolar?

Bipolar Disorders are brain disorders that cause significant changes in an individual’s mood, energy level, and ability to function, that are not typical for the individual.  It is normal for people to have fluctuations in mood and energy levels in response to life events and stressors.  For example, most individuals will feel sad at the death of a loved one, after a break-up, or during a stressful period at work. At the opposite end of the spectrum, it is normal for individuals to experience feelings of elation, joy, and happiness in response to events like falling in love, getting a promotion, or the excitement before a much-anticipated vacation.

The difference with individuals who have bipolar disorder is that the changes in mood and energy levels:

  • Are the result of chemical brain changes;
  • Occur during distinct periods of time, which are referred to as a “cycles” or “episodes”; and
  • Are much more intense and severe in nature than mood and energy changes in unaffected people.

So, while manic or depressive episodes can be triggered by stressors in the individual’s life, the mood and energy changes are significantly impacted in bipolar disorder by brain changes that individuals without bipolar disorder do not experience.

There are three types of bipolar disorder and many additional subtypes for each disorder. The type of bipolar disorder that an individual is diagnosed with will determine the level of impairment on the individual’s ability to function, and the impact the person’s behavior might have in the workplace.

Sometimes it can be a bit difficult to conceptualize the difference between bipolar disorder and normal mood/energy changes, since we all have fluctuations in our mood and energy levels – one of the reasons why bipolar disorder can at times be complicated to diagnose.  However, when an individual has bipolar disorder, her fluctuations in mood and energy level are extreme and she often lacks the ability, without intensive treatment (often including medication), to bring her energy level and mood back to a “normal” level.

A few examples of the types of symptoms individuals diagnosed with a bipolar disorder may experience include:  

  • Sudden changes in mood (elevated, expansive or irritable mood)
    • This change in mood typically lasts at a minimum, 4 to 7 days
  • Excessive energy beyond reason (the individual may sleep as little at 1-2 hours a night, and will continue to have excessive amounts of energy the remainder of the 24-hour period)
  • Inflated self-esteem or grandiosity (the individual suddenly believes they are famous)
  • Changes in sleep patterns (during a manic episode sleeping as little at 1-2 hours a night)
  • Rapid speech, increased talkativeness
  • Disorganized thinking
  • Increased goal-directed activity (the individual may be highly productive for a period of time)
  • Increased risky and impulsive behavior (hypersexual behavior, unusual spending sprees, gambling)
  • Psychotic symptoms (an impaired sense of reality)
  • High levels of irritability (impulsive aggression may be present during a manic phase)

Bipolar disorder unfortunately causes the highest percentage of serious impairment among all mood disorders, and when diagnosed with the more severe type of the illness, individuals often have distinct episodes in which they require intensive treatment and impaired function in the workplace.

What is the impact of Bipolar Disorder in the Workplace?

The type of bipolar disorder the individual is diagnosed with will determine the impact within the workplace.  Individuals with Bipolar Disorder often have the most significant impairment when experiencing an acute manic episode.  Individuals that have bipolar disorder cycle in and out of acute episodes.  In between these episodes, individuals may experience a return to their baseline with no or limited symptoms present.  However, during an episode an individual may need time away from work during a hospitalization until his symptoms are stabilized enough to allow him to function well in the workplace.

Mental illness tends to be stigmatized and judgements are often made about employees who need to take time away from work for treatment of a mental health condition.  But in reality, there is no difference in the need to take time off from work to allow your body to recover from the flu as there is from the need for an individual to take the time off work to recover from a manic or depressive episode.

Is Bipolar Disorder Real?

There is a common misperception that mental health disorders are not a real or are caused by personal weakness.  Research and scientific evidence has demonstrated that bipolar disorder creates significant changes in the brain and have a genetic link.  In fact, if an individual has a first-degree relative with bipolar disorder, they are ten times more likely to also have the disorder.

It is extremely important for individuals with symptoms to be properly diagnosed and to receive treatment under the care of a medical professional, as bipolar disorder is associated with significant life-threatening risk.  It is estimated that 1 in 5 individuals with bipolar disorder complete suicide and individuals with bipolar disorder are estimated to have a 9.2 year reduction in life expectancy as a result of co-occurring medical conditions and increased risk of suicide.

How can Employers Create Opportunities for Success for Employees with Bipolar?

Despite the impairments that bipolar disorder may cause an individual, make no mistake: these individuals can be a true asset to any organization, similar to any employee who does not have the bipolar diagnosis.  Agencies will benefit from understanding how to support individuals with bipolar disorder and creating opportunities for employees to perform at their highest potential. 

  • Ensure all supervisors, managers and human resources staff are educated on the symptoms of bipolar disorder.
  • Learn to recognize the warning signs that an employee is struggling and provide support and guidance to help them access treatment options.
  • Engage in the Reasonable Accommodation process after a request for accommodation has been made.
  • Encourage and support employees in accessing EAP and appropriate mental health services.
  • Implement programs through HR or EAP that promote mental wellness and stress reduction.

Join FELTG for a webinar on Managing & Supporting the Employee with Bipolar Disorder, June 20. [email protected]

 

[Looking for Bill’s No. One favorite f-word? Look no further. It’s “forgiveness.” Accept apologies and move on. Life’s too short to be offended about things all the time.]

The New Executive Orders and Labor Relations

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By William Wiley, June 5, 2018

As most of our wonderful readers know by now, on May 25 President Trump issued three executive orders to shake up the civil service. One of them primarily was focused on employee accountability for performance and misconduct. As we wrote in another article, those changes were significant, but well within the range of flexibilities already in the system, and already employed by the more progressive agencies for many years.

The other two executive orders were designed to change the world of labor relations in federal agencies. Although the EOs have been characterized in the media as taking away the “rights” of unionized employees, they actually don’t do that. Instead, they primarily lay out a framework for organizing management proposals once collective bargaining commences. Unions still retain their basic rights under law; the executive orders direct where management is supposed to take a contrary position consistent with an “effective and efficient Government.”

Here are the primary changes:

  • “Official time” is now called “taxpayer-funded union time.”
  • Agencies should eliminate unrestricted grants of taxpayer-funded union time and instead require employees to obtain specific authorization before using it.
  • Agencies should strive for a negotiated union time rate of 1 hour or less (here are FELTG, we don’t know what this means).
  • Employees may not engage in lobbying activities during official time.
  • Union reps must work 75% of the year in their regular jobs.
  • No free use of agency facilities or property by the union.
  • No reimbursement for expenses incurred performing union activities.
  • No official time to pursue union grievances.
  • OK to use official time to prepare grievances brought by an employee or to appear as a witness.
  • Agencies that form part of an effective and efficient Government should not take more than a year to renegotiate CBAs.
  • The parties should adhere to negotiating period of 6 weeks or less to achieve ground rules, and a negotiating period of between 4 and 6 months for a term CBA under those ground rules.
  • The agency head shall notify the President of any negotiations that last longer than 9 months.
  • A Labor Relations Group shall consist of the OPM Director and staff and representatives of participating agencies determined by their agency head in consultation with OPM.
  • The OPM Director shall chair the Labor Relations Group and provide administrative support for the Labor Relations Group.
  • Agencies with at least 1,000 employees represented by a collective bargaining representative shall participate in the Labor Relations Group. Responsibilities:
    • Gathering information to support agency negotiating efforts and creating an inventory of language on significant subjects of bargaining that have relevance to more than one agency and that have been proposed for inclusion in at least one term CBA.
    • Developing model ground rules for negotiations that, if implemented, would minimize delay and set reasonable limits for good-faith negotiations.
    • Analyzing provisions of term CBAs on subjects of bargaining that have relevance to more than one agency, particularly those that may infringe on, or otherwise affect, reserved management rights.
  • The analysis should include an assessment of CBA provisions that cover comparable subjects, without infringing on reserved management rights.
  • The analysis should also assess the consequences of such CBA provisions on information sharing and analysis, including significant proposals and counter-proposals offered in bargaining.
    • Establishing ongoing communications among agencies engaging with the same labor organizations, and
    • Assisting the OPM Director in developing Government-wide approaches to bargaining issues that advance the policies set forth in the order.
  • This one is HUGE: Management should endeavor to bargain with the union so that employees cannot grieve removals to an arbitrator.

There are a lot of words and terms put forth as mandatory, but in reality, have squishy meaning in application:

  • Interpreted in a manner consistent with the requirement of an effective and efficient Government
  • Reasonable time
  • Promptly
  • Minimize delay
  • Timely manner
  • Expeditiously
  • Reasonable, necessary, and in the public interest

Also, there are time limits for implementation, reports to be made, and authorities assigned. You’ll have to read the full EOs to get the details and the flavor of what the White House is directing to be done. Be that as it may, if you are a management official the above are your goals and requirements for your collective bargaining relationship with your union, so you’d better get hopping if you want this to be done in a “timely manner.”

Here at FELTG, we’ve now given you two summaries relative to the three new EOs. In our third piece regarding these significant changes directed by the White House, we’ll discuss the legality of the requirements of the EOs (we’ve already spotted one illegal provision) and the enforceability of the requirements. We’ll try to get around to that just as soon as our respective heads stop spinning from trying to digest everything that’s going on here. It’s one thing to put out orders; it’s another to be able to enforce those orders (those of you with children know exactly of what I speak).

Some years, our business of civil service law is relatively boring. This is not one of them. Hang in there. We’re with you every step of the way. [email protected]

What You Need to Know About the New EOs

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By William Wiley, May 29, 2018

Wow, what a news dump Friday late. On Saturday, it was above the fold on page 1 of the Washington Post; it was above the fold, page 1 of the New York Times; and the PBS News Hour called it the most significant change to our civil service in over a generation. Who knew that President Trump’s three new Executive Orders issued last week would cause such a stir in the media? “Unprecedented changes by which the White House has made it easier to fire bad federal workers by curbing their protections.”

And they are all wrong.

Yes, the President issued three new Executive Orders related to the civil service last week. And, yes, they are significant. But they do not – repeat, do not – curb existing civil service protections or really create very much that is new at all.

However, what they do for you and to you is mandate the government-wide exercise of existing flexibilities in the civil service laws that have always been there and which some forward-looking agencies have been doing for decades. You have to read the Executive Orders themselves to get the full feel of what is being ordered for the Executive Branch by the President. However, until you get a chance to do that, here’s a summary of what you need to start doing now to be in compliance with the orders:

Unacceptable Performance

The White House has concluded that a number of agencies have not been acting fast enough to deal with non-performers. In our FELTG opinion, the White House is right. If you are a management official in human resources or legal in a federal agency, you are to immediately change your practice to conform with the following:

  • The Executive Order drops the concept of an “improvement” period and instead has begun to use the legally-correct term of “demonstration” period. It takes much less time for an employee to demonstrate whether he can do his job than to see if he can improve in doing his job. This movement in concept corrects the error that OPM made back in the early 80s when it created the acronym “PIP” (first, Performance Improvement Period, then Performance Improvement Plan) in reference to the period mandated by law for a demonstration of acceptable performance. Forward-looking agencies such as HHS have already moved in this direction by dropping the acronym “PIP” and describing the period as an “Opportunity to Demonstrate Acceptable Performance.”
  • In understanding that the period is to “demonstrate,” not necessarily “improve,” the EO requires agencies to limit these periods to 30 days. That change will be a great relief to federal supervisors who often are told that the performance period should be 60, 90, or even 120 days in length. One participant in a FELTG seminar earlier this year told us that his HR advisor advised him that the period had to be six months long. Woof. No wonder so many supervisors think it is hard to fire poor performers.

This mandate for a government-wide approach to poor performance is not a curbing of employee protections. The protections are the same as they have been since 1979. It is simply a recognition that some agencies have strayed from the concept of the efficient handling of a performance problem and directing that they focus on getting the job done more quickly while simultaneously honoring the statutory protections of most all federal employees.

Adverse Actions

We use the Unacceptable Performance procedures for holding employees accountable for meeting their performance standards. We use the Adverse Action procedures for holding employees accountable for adhering to workplace rules. The EOs require that agencies change their procedures for firing employees who engage in misconduct in the following manner:

  • Make it clear that while progressive discipline is a factor to be considered in whether an employee should be fired on the occasion of new misconduct, it is not a mandatory requirement to engage in progressive discipline prior to removing someone. Although this has always been the law, some in the media have misunderstood the concept and have claimed that civil servants cannot be fired without progressive discipline.
  • Clarified that past disciple is an aggravating factor in selecting a penalty for current misconduct even if it is for a different type of misconduct. For example, a prior Reprimand for disrespectful conduct would be just as aggravating when selecting discipline for the subsequent misconduct of AWOL as would be a prior Reprimand for AWOL. Recent MSPB decisions issued by Board members appointed by the previous administration have discounted prior discipline if it was different from the current misconduct. The EO corrects that unwarranted drift in our case law.
  • As many of you readers know, the majority of Board members serving in the previous administration came up with a concept that drove us all crazy: The Terrible Trilogy. Those three cases issued in 2010 abandoned decades of case law that held otherwise and ordered that agencies discipline all employees at the same level for the same misconduct throughout the agency. Given that this is a physical impossibility and not helpful at all in holding employees accountable, we all suffered mightily. Goodness knows this newsletter whined long and loud about the damage being caused by the Trilogy. The EO makes it clear that this is not to be the rule in the future. Deciding officials will be able once again to discipline employees independently, not restricted by the discipline meted out to other employees by other deciding officials.
  • When a supervisor decides that an employee should be fired for misconduct or performance, she has to give the employee notice that she is proposing the removal. The employee then has at least seven days to defend himself by responding to the notice. The deciding official can issue a decision any time after the employee responds. Unfortunately, some agencies have been waiting weeks, months, and occasionally years to issue these decisions. Now these decisions must be issued within 15 business days.
  • The 7-day notice period, above, can be extended to no more than 30 days under the EO.

Labor Relations

Two of the three EOs deal specifically with employees in a collective bargaining unit. We’ll address those significant changes in a later article.

For those of you who have been regular readers of our FELTG newsletter and have attended our FELTG seminars over the years, these changes will look very familiar. We have routinely cajoled, begged, and lectured agency HR and legal officials to approach accountability in this manner. We have strongly criticized MSPB when it has varied from these core concepts. Have the President’s advisors been reading the FELTG newsletter? Have they consumed our textbook UnCivil Servant? Have they sat in our seminars, hiding their identities, and soaking up all this good stuff as we dished it out? Or, maybe they actually contacted us and asked for our opinion as to how things could be improved within the current system without the need for new laws?

Well, aren’t you the inquisitive one, My Pretty. Unfortunately, some things have to remain private, for national security reasons. However it happened, you’d better start coming to our seminars and tuning into our webinars if you want to be on the cutting edge of the evolution of federal employment law. Whether we are steering it or just guessing where its going, there’s nobody else out there who can get you this close to the future of our business. [email protected].

Read the full text of the EO here.

Join FELTG for a webinar on the new EOs on June 13. Register here.

Think About This Before It Happens to You

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By William Wiley, May 22, 2018

MSPB just established a new policy. You need to know it and decide what to do before you are called on to act on short notice.

As most all Board practitioners are aware, MSPB HQ has effectively been shut down since January 6, 2017. On that date, one of the two remaining Board members unceremoniously resigned before her term was up, leaving the Board with only one member and thereby without a quorum. MSPB quorums are essential to the Board being able to act. The three-membered Board, comprised of Presidential appointees, gets involved when either the firing agency or the fired former-employee files a Petition for Review (PFR) challenging the initial decision of an MSPB administrative judge (AJ). A single member cannot issue a final Opinion and Order to resolve a pending PFR. It takes two to tango; it takes two to adjudicate PFRs.

Many actions related to case handling taken by the Board require agreement among the Board members. No single Board member, with rare exception, has the independent authority to do much when it comes to the resolution of PFRs. The challenge this approach has caused has been magnified by the day-by-day growth of the pending PFR decision backlog for the past 16+ months. If you are a wrongly fired employee, every day that your case is not resolved is potentially one more day you don’t pay your rent, or eat, or can’t hold your head up at dinner with the family.

Hypothetically, the judge ruled against you in the fall of 2016. You filed your PFR challenging the judge’s misplaced initial decision, and began to wait for a Board decision on your appeal. In normal times, that wait would have been around six months – sometimes a bit more, sometimes a little less. However, being the smart appellant you are, about last spring you begin to realize that you aren’t going to be getting a decision on your PFR anytime soon. You decide that enough is enough, and file a motion to withdraw your pending PFR, formally asking the Board to dismiss your appeal. Better to be out of that mess than stuck there indefinitely, you might be reasoning.

But, wait! Your PFR is pending with a quorum-less impotent Board. If MSPB lacks the legal authority to issue any decisions, arguably it lacks the legal authority to grant your motion to dismiss your PFR. That two-to-tango thing might well apply to cases pending at MSPB HQ whether they are to be dismissed as withdrawn or ruled on in a decision. Maybe the single remaining Board member just can’t do anything.

Well, perhaps relief is in sight. MSPB just announced a policy that even with just a single member seated, the Board’s Clerk can grant motions to dismiss pending PFRs if:

  • The motion to withdraw is not based on a settlement;
  • It is unopposed by the other party; and
  • It is timely filed.

It appears that there might be some light at the end of the tunnel for parties to PFRs who are tired of waiting on a decision. But, wait! (Again.) What does “timely filed” mean? There’s nothing in the Board’s regulations that sets a time limit for filing a Motion to Withdraw. Will the Clerk use the time limits for filing the initial appeal documents? That doesn’t help the poor schleps who have been sitting at the Board for over a year, waiting on their government to act. And what does a withdrawn PFR do for the withdrawing party? Can an appellant whose PFR is withdrawn now file with the US Federal Circuit Court of Appeals, thereby challenging the AJ’s decision? Aren’t the time limits for that based on the date of the judge’s initial decision or a Board final Opinion and Order?  The drop-dead date for appealing to the Federal Circuit based on the judge’s initial decision has long passed in most cases, and a Clerk’s dismissal based on a Motion to Withdraw doesn’t feel like a final Board Opinion and Order. Finally, is this new policy even legal? Lordy, I hope so, ’cause if it’s not, we’re looking at some pretty messed up cases should this thing be overturned a couple of years down the road.

It appears to us here at FELTG that there are some questions yet to be answered relative to this new policy. However, it is a policy in force right now, so be aware and be prepared. For example, if you are an agency representative in a pending PFR case, will you object if the appellant who filed the PFR asks that it be dismissed? How would a dismissal be to your advantage?

Alternatively, what if the judge set aside your removal in the initial decision and you filed the PFR? Why would you withdraw your appeal? You’ve already restored the employee to interim paid employment. Is it worth it to give up your chance to be heard by a Trump-appointed Board to roll the dice and see if OPM and DoJ will support your appealing to the Federal Circuit? Even if so, will the Federal Circuit find your appeal there to be timely filed?

The leadership of the Board is to be commended for trying to do something (anything) to reduce the pain being suffered by agencies and appellants who are stuck in the backed-up toilet of PFR adjudication. Our FELTG guesstimate is that as of today there are about 1050 cases sitting there at Board HQ on M Street NW, waiting on just one more signature by a new member to be resolved. Although the President in March nominated two new Board members who will resolve the no-quorum dilemma, the Senate has not scheduled the predicate hearing necessary to get a vote on the nominees. And as all you Hill Observers out there know, if it doesn’t happen by mid-July on Capitol Hill, it ain’t gonna happen until the frost is on the pumpkin in the fall.

Sometimes we have more questions than answers, and this is one of those times. But that doesn’t mean you can wait on the answers. Get those great minds at your agency (or in your union) on a teleconference, discuss the pros and cons of withdrawing pending appeals, and make a smart decision about to what to do now, before it’s necessary to act. [email protected]