By Deoborah Hopkins, June 17, 2020
Here’s a timely hypothetical that recently came across the FELTG desk:
My agency sent all employees home to telework starting at the beginning of April. Hypothetically, the agency learned that an employee left his computer power cord in the office before he started teleworking, but he has been submitting 40 hours a week on his time sheets for the past two months. His computer charge lasts approximately 6 hours, and the employee’s work tasks requires use of the computer all day, every day.
I’ve been advised that investigating this misconduct would be too difficult because there wouldn’t be witnesses to attest the employee wasn’t working, and that our agency can’t discipline the employee anyway because of the current situation with the pandemic. Do you have any thoughts on this?
And our FELTG response.
Thanks for the note, FELTG reader. This one seems so easy to me. The employee is claiming pay for a large amount time when he did not work (approximately 320 hours), which is an egregious act of misconduct.
As members of FELTG Nation know, in order to discipline a Federal employee for misconduct, the agency must follow the five elements of discipline.
1 – Is there a rule? Yes, of course. Federal employees can’t lie on their time cards. It violates Federal statute to do so. See, e.g., 18 U.S.C. § 641; 18 U.S.C. § 287; 18 U.S.C. § 1001; 31 U.S.C. § 3729.
2 – Does the employee know the rule? Yes, every Federal employee receives training on how the time and attendance system works and is told their input must accurately reflect their schedule. In addition, most employees are subject to some version of the following when filling out their time and attendance records: “I certify that the time worked and leave taken as recorded on this form is true and correct to the best of my knowledge.” Moreover, the employee must click “Affirm” to validate, or sign their name if they submit a paper time and attendance form.
3 – Do you have proof the employee broke the rule? The standard here is preponderant evidence (or substantial evidence, if you’re covered by the new VA law). The employee has been at home for two months and has admitted he has not had a power cord for the laptop the entire time, and has done no work, yet he has submitted for full pay every day. Is this preponderant evidence? Sure it is. Your evidence is the employee’s admission. Remember, preponderant evidence – more likely than not – is all you need, and the employee’s admission meets that standard. There is also presumably evidence he is not working because no work has been submitted during this time. (There’s also a supervisory issue here, because a supervisor should be aware if an employee has not turned in any work in two months. But that’s another article.)
4 – Justify your penalty. Most agencies are required to justify a penalty by using the Douglas factors. A good starting point is to add up the amount of money the employee claimed and was paid, for time not actually worked. That amount, whatever it comes to, is an egregious misuse of taxpayer dollars. You can also address the loss of trust and confidence in the employee, plus any other Douglas factors that aggravate the penalty such as past discipline, employee performance, and rehabilitation potential. The COVID-19 pandemic might be a mitigating factor for some employee misconduct (for example, an employee did not log on to a web meeting because they were taking care of a child who was sick with the coronavirus and had a 103-degree fever), but in this hypothetical case a pandemic does not forgive, or even mitigate, two months of serious ongoing misconduct.
5 – Provide due process. You’ll complete these steps:
- A proposal letter containing the charge(s) and penalty
- The employee can respond to the charge(s)
- An impartial decision
As far as the charge is concerned, in addition to the falsification/claiming time not worked/whatever you call the misconduct here, there could easily be another charge for the employee not alerting the supervisor that he left his laptop charger in the office and had no way of doing his work. Your agency telework policy likely mentions a process employees should follow if they have technical issues while on telework, and at the very least you can justify that the employee should have known that when he was on telework he was expected to work, and that if there were problems, he should alert the agency as soon as possible.
This scenario is not uncommon, unfortunately, and we will be addressing similar challenges on July 1 during the webinar Performance and Conduct Problems During a Pandemic: Holding Remote Employees Accountable. Hopkins@FELTG.com