By William Wiley, March 15, 2017
They say that one does not want to watch either laws or sausage being made. I might add to that list that’s it’s better not to watch employment lawyers having drinks.
A couple of weeks ago, I was having dinner with two of the best federal employment lawyers I have ever known. After the mandatory two-martini round of drinks (hey, we’re lawyers; they don’t call it a “bar association” for nothing), we found ourselves in an animated discussion that involved raised arms, exaggerated facial features, and loud voices. Clearly, those poor diners seated nearby must have thought us either to be engaged in something highly important or to be just flat out bat-poop crazy. No doubt they were distracted, if not completely put off, from their respective meals by our disruptive discussion.
And what was the topic that got us all fired up? Official Time for the Pursuit of EEO Complaints.
Here was the hypothetical scenario:
- As Deryn well described in the previous article, EEOC regulations require that an agency grant employees “a reasonable amount” of duty time to work on their EEO complaints.
- What if the employee has performed so poorly in the past that the supervisor has determined that the employee is working at the Unacceptable level, and has initiated a 30-day Performance Improvement Plan? As every experienced practitioner knows, 30-days is routinely accepted by MSPB as an adequate PIP length. At the end of the PIP if the employee has continued his unacceptable performance, the supervisor has no choice but to remove the employee from the position. 5 USC 4302(b)(6).
- Then, during the PIP, the employee files several extensive EEO complaints, complaints that would require many hours of on-duty official time to prepare.
- Question: Is the agency obligated to grant ANY official time given that the employee is on the cusp of being fired; e.g., can it declare that when applying EEOC’s regulations to the situation it is per se unreasonable to allow EEO-complaint official time for an employee who is on a PIP?
The good-government equities that would lead us to an answer to this hypothetical are balanced:
- On one hand, we want civil servants to be free of civil rights discrimination in the federal workplace. In pursuit of that honorable objective, it makes sense that the government would allow work time for the employee to seek redress from perceived discriminatory acts.
- On the other hand, we are taking strong hits from Congress and others charging that in the civil service we do a poor job of holding employees accountable for their performance, that we allow non-productive employees to linger on the roles for months and years beyond the time they should have been fired.
EEOC makes the rules relative to official time. As Deryn described in Virginia K., the Commission will consider the work needs of the agency when deciding how much official time is reasonable; “she was behind on sensitive work.” What we are missing is an EEOC decision as to whether there might be a situation in which zero official time is warranted due to the agency’s need for productivity in a particular situation. One or two of us at dinner concluded that, yes, there are work situations in which no official time need be granted by an agency, and during the pendency of a PIP is one of them. One or two others at dinner that night concluded just the opposite, that there are no situations in which EEOC would conclude that denying any official time was reasonable.
So what do you think? Keep in mind that in the private sector, employers are not obligated to provide work time for individuals to pursue discrimination complaints. They must do it on their own time. Also, keep in mind that there’s a movement afoot to try to run the government more like a private-sector business rather than like a bureaucracy. Perhaps that’s why Congress enacted legislation effective in December that severely limits an agency’s ability to place employees on an administrative leave status, without any exceptions for administrative leave for employees to pursue EEO complaints. And finally, when you look into the future trying to predict what will happen if this issue ever gets to EEOC, be sure to factor in that the decision will be made by individuals appointed by the new White House, not by the one that just left town.
So how did we resolve all of this at dinner? Well, we did what any good group of lawyers would have done: we ordered another round of drinks and moved onto other things to argue about. I wish you had been there with us.
By the way, here at FELTG, we’ve come up with two great alternatives as to what to do when you are confronted with an employee on a PIP who requests official time under EEOC’s regulations. If you’d like to know what those are, you’ll want to come to the next offering of our world-famous seminar Absence and Medical Issues Week, starting March 27 in Washington, DC. Since you couldn’t make it to our dinner, maybe you’ll be able to hook up with us there. Wiley@FELTG.com