What in the World is Going on at MSPB?

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By William Wiley, March 14, 2018

You have to understand the role and the operation of the US Merit Systems Protection Board plays in our country to fully appreciate what is happening there now. You experienced readers will have to forgive us for some basics before we can get to the meat:

  • The good citizens of our great country are served by its government. The government is made up of 2+ million civil servants who, to varying degrees, do the best they can to make government work.
  • When a federal employee breaks bad (unacceptable performance or serious misconduct), his supervisory chain has the right to fire him. Because he is protected by civil service laws from unfair treatment by his supervisors, that (now former) employee has the right to defend himself in an appeal to MSPB.
  • Usually, there are two levels of review at MSPB. First, a Board administrative judge conducts a hearing, then issues a decision based on the evidence and argument as to whether the appellant stays fired or gets his job back. Next, that judge’s decision can be reviewed, affirmed, or set aside by the three members who make up the Board itself.
  • The Board’s members are Presidential appointees, confirmed by the Senate, to serve specific seven-year terms. The terms are independent, and their expiration dates overlap. Once confirmed by the Senate to be a member, the President has the independent authority to designate a member as either the Chairman, Vice Chairman, or simply Member.
  • The most recent term expiration occurred a couple of weeks ago, on March 1, 2018. That term currently is occupied by Mark Robbins, an Obama appointee who continued to serve even after the change in administrations. Prior to the expiration of that term, Mr. Robbins effectively could not be replaced by the President. Once that term expired earlier this month, Mr. Robbins could “hold-over” and continue to serve as a Board member for another year. However, the President would now be free to replace him at any time after March 1.

We have had two vacancies at the Board since January 2017. With only one remaining member (Mr. Robbins), MSPB lacked a quorum and could not issue final orders regarding the appeals of judges’ decisions. As of today, there are about 875 appeals of judges’ decisions that are backlogged at the Board due to this year-long lack of a quorum. Were the White House to nominate just one more member to the Board, along with the 800+ internal votes already cast by Mr. Robbins, that new member could also vote on a case, affirming or setting aside a judge’s decision, thereby releasing that appeal from the case backlog.

With that as background, we serious Board watchers – and others who are concerned about an effective civil service – were delighted to see that last week the President announced the nomination of a new Board member, Andrew Maunz, an individual who is a solid career attorney with exceptionally high credentials, to become a final adjudicator of removals from the civil service. FINALLY, after all these months, we expected we could begin to see things start to move at the Board. Appellants would begin to find out if they were to stay fired or were to get their jobs back. Back pay would stop accruing against agencies who might be in a position of losing appeals to the Board. Whether we ultimately were to agree or disagree with the decisions that we expected to see begin to be issued, at least the backlog would start to be reduced, and justice finally would be done.

Not only were we impressed that the White House had selected a highly qualified and experienced individual to serve as a new Board member, the President’s respect for the math was also impressive. You see, had the President at the same time nominated TWO new members instead of one, that would have doubled the time necessary for cases to start being voted out and the backlog thereby reduced. It should be relatively obvious that two people take twice as long to consider and adjudicate an appeal as would one. In addition, three members are more likely to disagree than are two, thereby increasing the amount of time necessary to resolve those disagreements. Yes, many of us were doubly blown away by the move the White House was making to replenish the Board.

And then the fine print of the White House announcement started to seep in.

Thanks to the help of several astute readers of our newsletter, we now see that new member nominee Maunz had been identified to take over the term currently occupied by Mr. Robbins – the term that expired on March 1, 2018, set to expire March 1, 2025. With his confirmation, Mr. Maunz will become the Vice Chairman and displace Mr. Robbins, thereby voiding the internal votes Mr. Robbins has been casting since becoming the sole remaining member of the Board on January 6, 2017. Therefore, instead of us joyfully celebrating that soon we can expect to see final orders flying out of the Board’s backlog with two members voting, we started to believe that we would continue to have a one-member, no-quorum Board.

And THEN, late last week, we got another announcement by the President of an intent to nominate a second individual to the Board. If confirmed, Dennis Dean Kirk will become the Board’s new Chairman, taking over the vacancy left when the Board’s former chairman quit before her term expired in early 2017. That term is set to expire March 1, 2023. Fortunately for us all, Mr. Kirk has federal experience as an attorney and has previously represented before the Board while in private practice. Past presidents have not seen prior federal employment experience as a necessary prerequisite to be a Board member.

Interesting observations about where we are with all of this:

  1. Historically, the designations of Chairman and Vice Chairman have been awarded by the President to the two Board members who are members of his party. As the Board cannot be composed of three members from the same political party, the betting money is that the remaining Member’s position will be filled by a Democrat appointed by President Trump (although an Independent or some other non-Republican would serve just as well).
  2. The President has appointed the new Chairman to a term expiring in 2023. He had the option of appointing him to the term ending in 2025. One might think the President would have put the Board’s chief executive officer into the position with the longer term for the sake of continuity. But, one would be wrong.
  3. While appointments could have been made to the Board that allowed Mr. Robbins to continue to hold over and his previously-cast internal votes to count, the White House has selected terms to be filled that displace Mr. Robbins and cancels out all the work he has been doing since January 2017. Whether this was an intentional decision or an oversight, the effect is the same: soon we can expect to have a bevy of new members at MSPB starting to work away at 875+ cases with no voting assistance from any former members.

Gentlemen, on behalf of our little training company, we welcome you to the battle, and wish you the best of luck in helping the civil service protections once again become a reality. Just try not to think about how many pages of reading await you when you have to adjudicate 875 appeals, just to get started in your new job. [email protected]

Animal Kingdom Throwdown: Service Animals vs. Emotional Support Animals

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By Deborah Hopkins, originally published March 14, 2018; updated October 10, 2023

Do you remember the story where an emotional support dog bit a little girl in the face on a Southwest Airlines flight a few years back? Or, how a Spirit Airlines customer flushed her emotional support dwarf hamster down an airport toilet after being told she was not allowed to fly with the rodent? (FWIW, the hamster-bearing passenger claimed a Spirit Airlines employee told her to flush the hamster, but Spirit Airlines has denied this accusation.)

If you didn’t catch those stories, you probably at least saw the headline in 2018 when United Airlines denied boarding to a woman’s emotional support peacock at Newark’s Liberty Airport. United’s statement to the media explained that the peacock “did not meet guidelines for a number of reasons, including its weight and size,” a fact which the would-be passenger had been told three separate times before she got to the airport. Should you ever need a bit of trivia for a cocktail party or a game show, in order to accommodate emotional support animals, the airline requires medical documentation at least 48 hours in advance of the flight, at which time they evaluate unusual animals “on a case by case basis.” While federal guidelines require airlines to permit passengers with disabilities to board with trained service animals or emotional-support animals, airlines may exclude from flights animals that are too large or heavy to accommodate on board, or animals that could cause a significant disruption of service during the flight.

No doubt about it, emotional support animals are becoming more popular in this country, but they are NOT the same as service animals. According to the ADA National Network, a service animal is any dog (or in certain cases, a trained miniature horse) “that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”

Let’s quickly set out some of the differences between service animals and emotional support animals:

Service Animals

Emotional Support Animals
  • Limited under the ADA to dogs (and in some cases, miniature horses)
  • Formally trained to assist people with disabilities
  • Do NOT bite or misbehave
  • May be certified by licensed medical providers
  • Perform physical tasks for disabled individuals with vision, hearing, mobility, and other impairments
  • Tasks may include pulling or pushing a wheelchair, retrieving dropped items, reminding a person to take medication, pressing an elevator button, alerting at the potential onset of seizures, and alerting at the arrival of visitors.
  • Also known as comfort or therapy animals
  • Can be any animal, really; we’ve seen various types of birds and fowl, snakes, monkeys, ponies, rodents, cats, even spiders
  • Do not undergo formal service animal training
  • May bite or misbehave
  • Are not certified by medical providers
  • Provide companionship
  • Help owners by providing emotional support for conditions such as depression, anxiety, PTSD, or mood disorders
  • Assist in relieving stress

 

There is no federal law that requires public organizations or businesses to accommodate emotional support pets, but sometimes people try to take advantage of the service animal stigma by bringing pets into public places and places of employment and hoping people are too afraid to ask if the animal is a trained service animal. It has gotten so bad, in fact, that some state and local laws have made it a crime to try to pass off an emotional support dog or pet as a legally-protected, disability-related service animal.

This topic of emotional support animals, while making the news this year, is not new. In a decision from 2006, the EEOC agreed with the Navy after the Navy denied an employee the use of an emotional support dog in the workplace, because there was no connection between the dog’s presence and the employee’s disability. While the employee was substantially limited in the major life activity of interacting with others, and the dog helped curb her anxiety and stress when she dealt with crowds and strangers, the employee was unable to show that she had to interact with crowds or strangers at work because her job consisted mainly of data-entry tasks. Struthers v. Navy, EEOC No. 07A40043 (June 29, 2006).

In another case from several years ago, an agency allowed an employee’s emotional support bird to stay at the office, as long as the bird was caged and the cage was kept clean. The employee requested to give the bird free range to roam outside the cage because he thought the bird would be unhappy cooped up, but the agency properly denied this request. Mermen v. USPS, EEOC No. 01A13112 (September 25, 2002).

Though there are not a whole lot of legal cases on this topic, we have seen an increasing number of federal employees attempting to bring emotional support animals to the workplace. What does this all mean for you? Here’s what you need to know: the EEOC takes that stance that an emotional support animal may be a required reasonable accommodation for a qualified individual with a disability, even if it is not a trained service dog.  So, whether the animal is a trained service animal or an emotional support animal, your agency has a duty to engage in the interactive process to determine if allowing the animal in the workplace would permit the employee to perform the essential functions of her job without causing an undue hardship.

That’s right: even though public places like restaurants, bars, movie theaters, supermarkets, and hospitals are not legally required to provide access to their customers’ emotional support animals, federal agencies actually do have an obligation to consider options for applicants and employees who request emotional support animals or service animals in the workplace.

Hope this helps clear up some of the questions you might have. [email protected]

Tips from the Other Side, Part 3

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By Meghan Droste, March 14, 2018

As spring approaches, notwithstanding the snow that some of you were fortunate enough to get in recent weeks, the stores are filled with Easter-themed candy.  My personal favorite is the chocolate egg filled with peanut butter.  It is truly the perfect balance of two perfect flavors.  Don’t believe me?  I’ll wait while you compare those to the standard peanut butter-filled chocolate cups.  See what I mean?  (I’ll trust that you do.)

Seeing, and trying to avoid eating, too many of these Easter egg candies brought to my mind the other kind of Easter egg – an unexpected feature or item that you might find in a movie, video game, or other media.  If you would like an example, Google the word “askew.”  You’ll find that the results page is tilted.  An Easter egg in this context is just another type of treat that you might stumble upon.  What does all of this have to do with the federal sector EEO process, you might ask?  Well, sometimes in the course of an investigation or discovery, I stumble upon what we can think of as an Easter egg – an additional, unexpected cause of action that neither I nor my client had any knowledge of at the outset of the complaint.  One good, and unfortunately still common, example is improperly stored medical documentation.

Agencies are required to maintain the confidentiality of any and all medical documentation that they collect from their employees.  This means that supervisors, reasonable accommodation coordinators, anyone who touches an employee’s medical documentation, must keep that information in a separate, confidential file.  The medical documentation should not be stored in the same file as performance evaluations, counseling memos, examples of the employee’s work product or anything else that someone might maintain regarding that employee.  There is no room for interpretation on this one–the information must be stored separately.

I frequently request copies of personnel files, including unofficial supervisory files, during the course of litigation.  Often times, there isn’t anything that either helps or hurts the case in any real way.  But every once in a while, I find out that the supervisor has comingled my client’s medical documentation with his or her notes about my client, or with other unrelated information.  When I find that, I automatically seek to amend the complaint, because this is a separate cause of action.

These types of claims are rarely going to end well for the agency.  A complainant does not need to prove discriminatory intent or establish that someone who should not have had access to the documentation actually saw it.  It is enough to show that someone improperly comingled the records.  See Mayo v. Dep’t of Justice, EEOC App. No. 0720120004 (October 24, 2012) (holding that “[t]he Agency’s failure to maintain Complainant’s medical information in separate medical files constitutes a violation of the Rehabilitation Act, even in the absence of an unauthorized disclosure”).

You can keep me from stumbling upon this kind of Easter egg by establishing a clear procedure for the storage of medical documentation and ensuring that everyone receives regular training on the procedure.  Feel free to send the chocolate and peanut butter kind my way!

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].

It Can Be Bad; It Can Be Good: Part II

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By William Wiley, March 14, 2018

Several weeks ago, we distributed an article explaining how an employee engaged in misconduct could be handled well, compared to a series of missteps that amounted to doing the wrong things. In response, we got an outpouring of requests (2) that we do the same bad-thing/good-thing comparisons for an employee who has not a misconduct problem, but rather is a poor performer. There are two different laws that come into play depending on the type of problem employee we have. For purposes of the comparison, we are relying on 5 USC Chapter 43 and 5 CFR Part 432 for the performance action.

So here’s our list of bad-choice/good-choice options. On the left, you’ll see a list of actions we have seen historically that supervisors think they have to take when faced with a poor performer. On the right, you’ll see our FELTG approach that cuts right to the chase and empowers the supervisor to respond much more efficiently when an employee is a non-performer:

Supervisor provides the employee a performance plan at the beginning of an appraisal year or when the employee enters a new position. Absolutely essential. We cannot use the unacceptable performance procedures to hold the employee accountable unless there is a current performance plan in place.
Training Not required. Employees are hired with the expectation that they can do their jobs. However, to be safe we do allow the employee around 30-45 days to get used to any new performance standards.
Counseling    Not required.
Written Warning        Not required and generally a bad idea because the employee can claim reprisal or discrimination.
Letter of Expectation Not required. Causes the process to be drawn out for no benefit.
Reprimand or Suspension No. These are tools for dealing with misconduct, not poor performance. They should never be used for poor performance under 5 USC Chapter 43.
Initiation of an Opportunity to Demonstrate Acceptable Performance (aka, a PIP) Absolutely correct. Once the employee has been on a plan for several weeks, and the supervisor determines (not proves) that performance is at the Unsatisfactory level on just one critical element, an opportunity period should be initiated.
The Opportunity Period is Set for 60-120 Days Never! These periods should be 30 days.
The employee files a traditional race/sex/age discrimination complaint, and the agency requires the supervisor to produce evidence that the initiation of the opportunity period was warranted. Wrong. EEOC has held for years that the implementation of an opportunity period is not an adverse employment action, and thereby it cannot be the basis of a discrete-act EEO complaint.
The supervisor leaves the employee alone during the opportunity period to give him an opportunity to perform. Wrong. The supervisor meets with the employee periodically during the 30-day period and gives the employee assistance by providing critical feedback.
The supervisor grants the employee’s annual leave request, thereby causing the period to be extended. Wrong. Any annual leave or LWOP request should be denied or canceled if previously approved. In comparison, sick leave must be granted if the employee is sick. The PIP period can be extended to make up for any sick leave used.
Because the employee presents evidence that he’s disabled and his disability caused the poor performance, the supervisor cancels the opportunity period. Wrong. Disability accommodation is relevant for the future, not the past. The correct approach is to pause the opportunity period, engage in a discussion with the employee to determine whether there’s an accommodation that will allow him to do his job, then provide the accommodation and re-start the demonstration period.
Because the employee’s medical documentation establishes that he cannot perform some essential function, the supervisor removes the function. Wrong. The supervisor does not need to remove the essential function. The supervisor now needs to terminate the employee for Medical Inability to Perform, if accommodation and reassignment are not possible.
If the employee performs successfully during the opportunity period, he’s off the hook. Wrong. The employee must maintain acceptable performance for the next 11 months after completion of the 30-day period. If the employee again becomes unacceptable, immediate removal is warranted without another opportunity period.
If the employee performs unsuccessfully, the supervisor gives the employee written notice that he has failed the demonstration period, and that a proposed removal will be issued soon. This is the stupidest thing I have ever heard, yet I know some practitioners who do this. If the demonstration period is failed, removal should be proposed within five days.
If the employee performs unsuccessfully, the supervisor proposes a removal or demotion. The much better strategy is to propose removal. If there is a demotion position available, the supervisor should offer it to the employee as a voluntary alternative to removal and get it in writing. That way, the demotion cannot be challenged on appeal.
Removal will be proposed only if there are boxes and boxes of documentation of non-performance during the opportunity period. Wrong. Removal can be proposed even if there is just a bit more than a speck of proof; a little more than a jot or a grain. This is called “substantial evidence” and it’s all that’s required to remove a poor performer.

 

In summary, trained practitioners know how to deal with poor performers:

  1. Once the employee has demonstrated unacceptable performance on a critical element, the supervisor initiates an opportunity period to allow the employee to demonstrate whether he can perform.
  2. During the 30-day demonstration period, the supervisor provides the employee specific information as to how he is performing relative to the failed critical element. The supervisor collects evidence of unacceptable performance that is occurring during the period.
  3. The HR advisor or attorney works with the supervisor throughout the demonstration period to make sure that all the necessary evidence is being collected, and that the supervisor is aware of what he will be issuing once the period is completed.
  4. If the demonstration period is failed, the supervisor issues a proposed removal based on evidence a bit more than a scintilla. If the demonstration period is completed successfully, the supervisor issues a warning to the employee that his removal will be proposed immediately if his performance again becomes unacceptable during the remainder of the year.

Yes, appeals, grievances, complaints, and ULPs happen, but that’s the price we pay for a protected civil service. If you know what you’re doing, you can keep them down to a minimum, and always win them. As we’ve been screaming at the tops of our little FELTG-voices for nearly 20 years, it’s not the system that is a problem as much as it is a lack of people who understand the system.

Come to our training. Learn the program. Be a Performance Management Superstar. We love this stuff. [email protected]

The “Reasonable” Aspect of Reasonable Accommodation: What Does Reasonable Really Mean?

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By Deborah Hopkins, March 14, 2018

There’s yet another recent EEO decision that makes me ask the question, “When it comes to providing reasonable accommodation to an individual with a disability, how far does an agency need to go?”

And the answer, based on this particular case: pretty darn far.

Here’s what happened. The complainant, a management and program analyst for the FBI, had exhibited some attendance issues and so the FBI issued a notice of proposed removal. In response to the notice, the employee disclosed that she suffered from major depressive disorder and anxiety disorder, and those disabilities were the cause of her attendance issues. She asked the FBI for an accommodation that would allow her a flexible amount of time (the language in the case is “daily variable schedule”) to complete her scheduled 80 hours of work per pay period. She even provided medical documentation that said she was “chronically sleep deprived” and a flexible schedule would provide her with a medical benefit.

The FBI supervisor, probably trying to be nice (because there is no legal requirement to cancel proposed discipline after the disclosure of a disability), held the removal in abeyance for 90 days and granted the complainant a “gliding schedule” that would allow her to report to work any time between 8:00 and 9:30 a.m. Despite this accommodation, the complainant was still late for work 21 times during the 90-day period. According to the agency, the complainant blamed several of her late arrivals on child care issues.

So, after the 90 days elapsed, the agency removed the complainant for AWOL and she filed a reasonable accommodation claim and requested a Final Agency Decision. The FAD found that Complainant was not denied a reasonable accommodation, and so she filed an appeal to the Office of Federal Operations.

The EEOC found that the FBI did not grant a reasonable accommodation and remanded the case (5 years later!), citing a few reasons:

  • The complainant contacted her supervisor on 18 of the days she was going to be late, and the agency did not consider granting the complainant leave as accommodation for her tardiness in those instances, instead marking her AWOL.
  • The child care issues were related to the underlying disability.
  • A maximum flexible schedule would have been an effective reasonable accommodation, and the agency did not demonstrate why the complainant needed to arrive to work by 9:30 a.m.
  • The agency did not demonstrate that granting a maximum flexible “gliding” schedule would be an undue hardship.

When I read the case, I don’t see anywhere that the employee requested a “maximum gliding schedule” for the agency to consider. She asked for a “daily variable schedule” which it appears the agency offered her, by allowing for a 90-minute window in which to arrive. But what do I know?

Yep. The EEOC said that the complainant’s oversleeping was a result of her disability and the underlying cause of her attendance issues, so therefore she was not AWOL when she didn’t get to work on time and didn’t call in, and the agency should not have expected her to arrive by 9:30 each day. Davina W. v. FBI, EEOC Appeal No. 0120152757 (December 8, 2017). [Editor’s note: The supervisor might have been able to defend his actions in this claim if he had kept notes of the harm that occurred each time the employee was late. That’s something we’ve been teaching for nearly 20 years. Contemporaneously document your reasons for doing something adverse to an employee, especially if it has the potential to show up as an issue in an appeal/complaint.]

I guess that’s what you get for being a nice supervisor and holding a removal in abeyance, huh? [email protected]

An Act of Smiling Insubordination

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By William Wiley, March 6, 2018

We get such good questions here at FELTG (because our readers are so smart, hardworking, and good looking). This one brought a big old smile to our faces:

Dear FELTG-Funny-People,

I’ve mentioned some of the topics covered in your newsletter to my boss, specifically the one about ordering an employee to smile and participate in meetings.  His perspective is that this would never work “in the real world.”  My perspective on his comment is that our agency solicitors wouldn’t support such an order or recommendation for removal.

Sad in Seattle

And our ever-thoughtful FELTG response:

Dear Sad-

Thank you for your nice note. It’s very kind of you to take the time to comment on one of our silly articles.

As for whether MSPB would uphold a removal for a failure to participate in meetings or smile, our job is to say what MSPB has done in the past so that we can predict what we can do in the future. And they have never said that this sort of misconduct (insubordination) would not support a removal. Our job is not to have an opinion on what should be done, but instead what can be done. That is my real world, and with all due respect, that is the real world of your supervisor as well as that of your solicitor.

We don’t need to guess at what MSPB would do. We just have to look and see what they’ve done in the past. When we do that, we find ZERO cases in which the Board has said that an employee is free to disregard a job-related order from a supervisor. In 40 years. Remember, I was the Chief Counsel to the Chairman at MSPB through most of the ’90s. I know this stuff. It is easy to imagine a job in which attending meetings would be job-related. Even smiling can be a job requirement; e.g., a supervisor might want employees who contact the public to smile for the benefit of presenting a better image of the agency. Your boss and your solicitor may not know this, but that doesn’t make them correct. Instead, it makes them uninformed.

Best of luck.

This is an important matter, not so much because we all want more smiling civil servants, but because it highlights a bedrock principle of the federal workplace. Supervisors get to decide what work is going to get done. Not some judge or political appointee on some board; the decision goes to front line supervisors. There are three and only three requirements for a supervisor’s order to be enforceable through discipline:

  1. There must be a nexus (relationship) between the order and the work of the agency,
  2. The order itself must not violate a law or require the employee to violate a law, and
  3. The order must be do-able (attainable).

Let’s say that you supervise a public contact Federal employee, perhaps a hypothetical screener for TSA. Your Customer Service surveys show that many members of the public who are screened by your employees find them to be gruff, uncaring, and rude (this is all hypothetical, of course). You decide that ordering your employees to smile might reduce the public’s negative perception of your crew. If you decide to order your employees to smile:

  1. There is a nexus between you order and the work of the agency,
  2. There is no law against smiling, and
  3. It is possible for employees to smile.

That’s all it takes. If Mr. Grumpy intentionally refuses your order for whatever reasons, you can reprimand him for insubordination. If he commits a second offense, you can suspend him, and if he commits another offense after he serves the suspension, you have the authority to consider firing him. You need not tolerate an insubordinate employee indefinitely.

“But, Bill. Won’t a judge overturn the removal on appeal?” Nope. The Board has long found fault with judges who insert themselves into the decision process regarding what work should be done. Supervisors decide what work should be done, enforceable through removal, if necessary. Even if a judge would never order her employees to smile and thinks it silly that any federal supervisor would give a smile-order, the judge has no authority to set aside the order. All she can do is review the order against the above three criteria, evaluate the penalty where she must give heavy weight to the repetitive intentional nature of the insubordination, and uphold the removal. If she did not, she would be affirming the power of federal employees to refuse to obey a supervisor’s order, and that’s just not going to happen. She cannot substitute her judgment relative to the wisdom of the order for that of the supervisor.

Tell employees what you want them to do, even if it’s something seemingly as minor as smiling. Apply progressive discipline to them when they don’t. Remove them if they become a three-striker. People can’t be forced to do what their supervisor tells them to do, but if they don’t, the supervisor has the authority to remove them from the civil service.

Remember that the next time your boss tells you to, “Have a nice day.” Better smile when he says that. [email protected]

It Can Be Bad; It Can Be Good

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By William Wiley, February 27, 2018

We love our questioners. Recently, we got an inquiry regarding an article written by one of our favorite authors. Here’s our response:

Dear Employment Law Gurus,

I read this article from Government Executive this morning. I would love to know your opinion of the premise of the article, basically it is too hard to fire federal employees, and the scenario the author provides.

http://www.govexec.com/excellence/management-matters/2018/02/low-rate-firing-government-employees-not-positive-sign/145763/?oref=govexec_today_nl

Thank you.

And here’s our guru-like response:

Thanks for your query. These are exactly the sorts of misunderstandings we love to address.

The author has expanded the scenario to make a valid point. As we have taught in our classes for years and provide as part of our consulting services, he is implementing, as is typical in many agencies, more actions than required by law. An FELTG-Certified practitioner would never do these things.

His list and our alternative:

Employee’s supervisor looks the other way First mistake. We teach supervisors to act immediately upon seeing misconduct.

 
Oral counseling Not required. Lehnerd v. OPM, 55 MSPR 170 (1992)

 
Written counseling   Not required and generally a bad idea because the employee will claim reprisal.

 
Written admonishment        Not required; potential reprisal claim same as above.

 
Reprimand Yes! Finally, the supervisor does what we teach should be done on day one.

 
Short suspension Can do. However, we teach to bargain with the employee to accept a Reprimand in Lieu of Suspension. No grievance that way.

 
15-day suspension Never! Why do something the employee can appeal to MSPB? Besides, unnecessary and of unproven value.

 
Proposed removal Yes! Should have been done after the Reprimand in Lieu of Suspension.

 
Injury after removal proposed Not in the FELTG world. We put the employee on Notice Leave so he is not in the workplace. No workers’ comp 45 days there.

 
Demands to be retrained     No entitlement to be retrained.

 
Reassigned Should have issued the decision to remove that was proposed earlier.

 

I know and respect this author. His scenario does indeed happen way too often. However, trained individuals know how keep this from happening:

  1. Reprimand,
  2. Reprimand in Lieu of Suspension,
  3. Removal.

Yes, appeals, grievances, complaints, and ULPs happen, but that’s the price we pay for a protected civil service. If you know what you’re doing, you can keep them down to a minimum, and always win them. As we’ve been screaming at the tops of our little FELTG-voices for nearly 20 years, it’s not the system as much as it is a lack of people who understand the system that’s the problem.

Come to our training. Learn the program. Be a Systems Superstar. We love this stuff. [email protected]

 

Another Congressional Tiny Little Foray into the World of Civil Service Law

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By William Wiley, February 20, 2018

Each year, the National Defense Authorization Act turns out to be a great piece of legislation into which members of Congress can stick things that have nothing to do with the nation’s defense. The Act for fiscal year 2018, HR 2810-335, is no exception. Dig through many pages in the bill of this and that, and you’ll find the following tidbit:

Sec. 1097(b)(5), INFORMATION ON APPEAL RIGHTS. —

(A) IN GENERAL. —Any notice provided to an employee under section 7503(b)(1), section 7513(b)(1), or section 7543(b)(1) of title 5, United States Code, shall include detailed information with respect to—

i. The right of the employee to appeal an action brought under the applicable section;

ii. The forums in which the employee may file an appeal described in clause (i); and

iii. Any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file an appeal.

(B) DEVELOPMENT OF INFORMATION. —The information described in subparagraph (A) shall be developed by the Director of the Office of Personnel Management, in consultation with the Special Counsel, the Merit Systems Protection Board, and the Equal Employment Opportunity Commission.

Context

To appreciate the relevance of this language, we need to know a couple of things:

Adverse Actions: To suspend, demote, or fire a Title V career federal employee, most agencies take what is known as an adverse action, 5 USC Chapter 75. Agencies must issue two separate documents to make an adverse action happen:

  • A proposal Notice that tells the employee why the action is being proposed, and explains the employee’s rights to defend himself, and
  • A Decision memo that takes into consideration the employee’s defense of himself, and notifies the employee of the outcome of the proposal; g., removal, demotion, suspension, or nothing.

Rights Notification:  Since the beginning of time (OK, maybe it was just since 1979), agencies have been required to include in the Decision memo an explanation of the employee’s rights to challenge the agency’s final action through appeal to MSPB. Historically, agencies have also included an explanation of the employee’s alternative rights to file a grievance under a collective bargaining agreement, a discrimination complaint to EEOC, and sometimes an explanation of the US Office of Special Counsel’s jurisdiction to consider claims of whistleblower reprisal.

About five years ago, MSPB decided that the various rights notifications used by different agencies were not uniformly informing to the employee of all the alternatives available to challenge the adverse action, and the implication of selecting one venue over the other. Therefore, by regulation, the Board mandated that agencies must provide a complete description of the various redress alternatives when issuing a decision in an adverse action appealable to MSPB.

However, for reasons unimaginable to the common mind, the Board did not say exactly what language should be used for the rights notification. That left agencies floundering around guessing what should be said in the rights notification to make the Board happy, and the Board reviewing those rights notifications judging some to be adequate and others not.

Here at good old FELTG, we did the best we could to sort all that out. As soon as the regulatory requirement was mandated, we offered draft language that we guessed the Board would accept. A few months later, we had to tweak that language because of an MSPB decision that pointed out the need for greater specificity of notice. Still, even with the second tweaked draft, we weren’t really sure that the MSPB was being appeased or whether it just had not gotten around to finding fault with what we had recommended. Lesser agencies who do not abide by our FELTG suggestions continued down whatever language rabbit hole they thought to be the better path. Quite frankly, we were all running backwards in the dark because of the lack of distinct and specific instruction.

Comes Now the NDFAA for Fiscal Year 2018:  Amazingly, somebody on Capitol Hill saw how foolish this was, and interjected the language you see above into a passing piece of legislation. No offense intended here, but I am awe-struck that someone up there appreciates the difficulty that this lack of guidance causes. Talk about civil service minutiae. Hats off to whoever saw the problem, and thanks for trying to fix a dilemma that should never have occurred.

Unfortunately, the law misses the point of a rights notification. An employee needs to know her rights to challenge an adverse action after the decision has been made to implement the action; e.g., in the Decision letter. The statutory language above requires that the rights notification be included in the Notice proposal. So now what will happen is that the poor employee likely will be confused and start filing appeals before the agency has made a decision as to whether an adverse action will be implemented at all, and if so, what it will be. If that happens, poor overworked MSPB will have to dismiss all those pre-decisional appeals as premature, and the confused employee will have to get good advice to know to refile once the final decision is issued. Groan.

MSPB, why in tarnation didn’t you just tell us what language to use as a rights notification in the first place? Why put it on us simpletons to guess at what you wanted? OPM, when you saw that MSPB wasn’t going to be helpful, why didn’t you have one of your senior people Uber over to M Street NW and talk with someone at the Board about a coordinated issuance of acceptable language? This is staff stuff. This is what staffs do. No big decision-making; that’s left to the politicals. Just normal people saying to normal people, “Hey, we got a procedural problem here. Can you help?” Geez, see what happens when you leave it up to Congress to fix something we should have fixed ourselves? Good try; just missed.

We’re all in this together: MSPB, OPM, EEOC, OSC, the other civil service movers and shakers; maybe even old FELTG, if you’ll allow us a guest pass. The goal is to make government work smoothly and fairly. Congress is going to continue to micromanage us until we learn to manage ourselves. This is not the best way to make government work well. [email protected]

Bug Bites: How Do You Handle an Employee Who Brings Bed Bugs in to the Office?

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By Deborah Hopkins, February 14, 2018

A few days ago, I got an interesting hypothetical question from a long-time FELTG reader, and it was such a good one I thought I’d share it with the rest of you. It’s something I hope is always hypothetical and you never have to deal with in real life. Here we go:

Hi FELTG,

I have attended many of your trainings and your instructors have even been out to my agency to train our lawyers and HR personnel.  I have a hypothetical strange case that I was hoping I could bounce off of you all.

Hypothetically, what should an agency do if it has an employee who is bringing bed bugs into the office? Let’s say the agency has already paid for an exterminator once and the exterminator confirmed that this employee’s office was the source of the infestation.  Let’s also say that the employee’s supervisor has talked with the employee to notify her of the problem (if she wasn’t already aware), and she told management that she would address it.

Now let’s say it’s a few weeks later and there are still bed bugs in the office, and it’s so bad that other employees are getting bit. Because coworkers getting bit by the bedbugs, this is hypothetically creating a massive morale issue in the office. What do you think a hypothetical agency should do in a case like this? Here are some thoughts:

  1. Do I give him an order and then discipline him if he doesn’t follow that order?  Is my order “Do not bring bed bugs into the office”?
  2. Do I indefinitely suspend him until such time as he can prove to the agency that he has addressed the problem at his home?
  3. Do I put him out on enforced leave (I don’t like this option)?
  4. Do I allow him to come to work but separate him from everyone else and force him to bring a change of clothes each day that is in a sealed plastic bag?

I’m assuming that someone must have dealt with something like this before.  Do you have any thoughts?

And here’s the FELTG response:

Dear well-thought-out FELTG reader,

What an interesting hypothetical you’ve presented to us. While this person’s behavior clearly involves employee safety and health, it’s also misconduct – and as you know from being a long-time FELTG reader, charging misconduct is fast, easy, and free. You give her an order, thereby making it her problem to resolve, and “Do not bring bed bugs into the office” is a clear, understandable order. Of course, you’ll document this conversation with her.

If you’re not going to fire her when she violates the order (if you determine the misconduct does not rise to the level of removable misconduct under Douglas) you can even do an indefinite suspension until she demonstrates medically she is free of the little critters, see, e.g., Pittman v. MSPB, 832 F.2d 598 (Fed. Cir. 1997); Moe v. Navy, 2013 MSPB 43 (June 14, 2013), which don’t deal with bedbugs but say that an agency can indefinitely suspend an employee, pending inquiry, for psychological or other medical reasons if the agency has a sufficient objective basis for doing so. We never have to tolerate unsafe or, for lack of a better term, unsanitary, conduct in the workplace.

No need to do enforced leave, and (not legal advice, just personal advice) I wouldn’t do Option 4 because the plastic bags might not work, and it would just drag out the inevitable.

Thanks for the note, and good luck if a case like this ever presents itself in real life! 😉

[email protected]

How to Write a Robust Critical Element

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By William Wiley, February 14, 2018

Few supervisory responsibilities are less clear than how to write a good critical element. Goodness knows it’s not for lack of “guidance.” The performance management world is full of important-sounding words and concepts: maximizing S.M.A.R.T. performance standards, GEPRA cascading goals, quality/quantity/timeliness. And then we have mandatory generic standards written by somebody in HQ who doesn’t know diddly about how things are done out here in the field and don’t really say anything worth saying: “empowering,” “transparency,” “learning-based approach,” “bottom-up buy-in,” “cascading goals,” and this season’s favorite useless phrase: “promoting engagement.” Aauugghh.

If you’re like most experienced Federal supervisors, you’ve probably come to the conclusion that this performance management stuff is just a bunch of B.S. dreamed up by some overly-intelligent Human Resources specialists to keep us worker bees busy. It all may sound good and worthwhile, but as a practical matter, it does you little good when it comes to actually managing employee productivity and getting the job of government done.

Well, we agree. To a point.

First, let’s start with the law. Whether we think that performance appraisal is worth a bucket of warm spit or not, we have to do it. The Civil Service Reform Act of 1978 mandated it throughout government, and there is little likelihood that Congress will be changing that aspect of the law any time soon.

Next, we come to the minimum you have to do. As a Federal supervisor, you are required to create at least one critical element (CE) in each performance plan you write. For each CE, you must create a performance standard by which you will rate the employee either Unacceptable or higher using one or more levels of rating above that. Drafting a usable CE and its standard is your primary responsibility because nothing else works in a performance management program without that.

And there’s the rub. I don’t know about you, but for every good CE I have seen in my career, I’ve seen a hundred that were miserably bad. Even with all those pages and pages of guidance put out by OPM and your own agency, nailing an effective CE is just about the hardest thing a supervisor has to draft each year.

Well, you’re in luck. Here at FELTG, we have devised a method for writing a power-packed, customized CE for every employee in government. It combines a fair amount of judgment with some hard lines in the sand for accountability. We can hardly wait to tell you about the FELTG-Method©, but first, you need to appreciate our bias:

Performance appraisal doesn’t work.

What? How can that be? Would Congress and OPM require federal agencies to spend millions of hours doing something that has not been proven to be an effective management tool? Yes, they would. As the lawyers say when something speaks for itself, res ips. The sad reality is that while annual performance ratings for employees sound like a good idea and are embedded in many organizations, you’ll be hard-pressed to find any academic research that finds that they are worth the effort. In fact, what you’ll find instead are studies that say that annual performance appraisals act to de-incentivize good performance. So, when we say we have a great way to write a CE, we’re not saying that because it’s a magic bullet to fix a non-functional performance appraisal program.

Instead, what we’ve done is come up with a terrific way to write a CE for the purpose for which they indeed are useful: to draw a line in the sand for employees either to keep their jobs or get fired. If you want something that helps you differentiate between Exceptional, Superior, Exceeds Expectations, Outstanding, or any of the other slices of acceptable performance, you’ll need to look elsewhere. However, if you want a CE that you can use easily to make it clear to the employee what she has to do to keep her job, then this approach is for you.

Now that you have the background, look for the other two articles in this edition of the FELTG Newsletter and learn the secrets of a super-duper CE. Once you’ve mastered the FELTG-Method© trick, promise us you’ll use your new powers only for good and not evil. [email protected]