Not Commandments, but 5 Suggestions for Federal Employment Law Practitioners

By William Wiley, February 4, 2020

A few years ago, someone sent me a list of “Ten Commandments” for those who do not subscribe to a particular religion. From a philosophical aspect, I found it interesting and applicable in a number of situations in life. With some paraphrasing, some apply to the field of federal employment law. Since we here at FELTG can’t command anyone to do anything, I thought I’d send these along as suggestions, reducing them to five, in the spirit of the thrifty thought that we teach in our legal writing programs:

1 – Be open-minded and willing to alter your beliefs when you are confronted with new evidence or argument.

2 – Strive to understand what is most likely to be the correct approach, rather than believing what you wish to be the correct approach.

3 – Legal research and formal training are the best ways to understand the field of federal employment law.

4 – Every supervisor has the right to decide the best course of action given a particular situation, as long as that decision is allowable by law.

5 – Many times in our business, there is no one right way to accomplish an objective.

I am reminded of these on occasion when someone in a class or by email asks me to explain something I’ve said in a training session. As our recurrent readers know, here at FELTG, we love getting your questions. It feels good to know that we might be contributing to a more-efficient civil service.

The best request for an explanation goes something like this:

“Hey, Bill. You are super-smart and very attractive. I get goose bumps when I read your insightful comments in an article. But I’m having a little trouble understanding your thought regarding blah, blah, blah, and wonder if you could explain it in more detail?”

“Sure, you poor under-educated newbie. I’d be delighted to impart to you a portion of the wisdom I have accumulated over the eons I have been in this business. Regarding blah, blah, blah, the answer which you seek is …”

“Wow, thanks, Bill! I’ve got it now.”

Frankly, I don’t necessarily believe that the questioner has “got it.” As far as I know, she may just be being nice, continuing to adhere to her misdirected view of the issue, but realizing that further exchange on the matter will do neither of us any good. Contrary to what some might believe, I don’t really care if anyone agrees with me. Here at FELTG, we don’t see it as our job to convince our participants of anything. Rather, it is our job to teach the conclusions we have reached based on many years of experience and study, and let you the student decide whether you agree or disagree. If you agree, fine. If you disagree, that’s fine, as well. Continue on your (misdirected) ways and let the consequences be what they may.

On rare occasions, however, we will bump into a participant who does see things this way, and who apparently sees it a responsibility to convince us that one of our instructors has said something that is wrong. Here’s an example of how one of those discussions goes:

[Me]: “In this situation, I’d suggest that you do X based on Y authority.”

[Participant]: “X is wrong. Z is the right answer because:

1 – I’ve always done Z.

2 – I was taught to do Z in a class I took years ago.

3 – I called my headquarters and they said that Z is the right answer.

4 – I heard a judge say that Z is correct.

5 – OPM regulations don’t say you can do X.

6 – I heard about a case in which the agency did X and it lost.

7 – I’ve been in this business as long as you have, and I’ve concluded that X is wrong.

8 – (And my favorite …) I don’t like X.”

Oh, poor participant. If only he would adopt the Five Suggestions, he might actually improve the performance of his craft. Be open-minded that there might be a better way to do things. Just because he’s always done something one way doesn’t mean it’s the only way. Look for more efficient approaches, not just the approach that he believes to be best. Consider new evidence, that being the conclusion of our instructor based on a lot of training and experience. Research the case law. Read the statute. And don’t rely on some case you read about in the newspaper.

Here are a few sample issues that have caused recent controversy, accompanied by our FELTG position on the matter:

• An agency can unilaterally suspend an employee without taking away his pay and then count the suspension as progressive discipline.

FELTG: An agency and an employee can enter into an agreement where a “paper” suspension equates to a prior act of discipline for progressive discipline purposes. However, without such an agreement the law requires there to be a loss of pay for there to be a suspension cognizant under Chapter 75.

• An agency needs a lot of proof of unacceptable performance to initiate a Performance Demonstration Period (DP, formerly a PIP).

FELTG: An agency has to reach a judgment that the employee’s performance is unacceptable before initiating a DP, but it will not have to prove the DP was warranted in an appeal to the Board of an eventual removal for DP failure.

• Douglas factors should not be included in the proposal letter, only the decision letter.

FELTG: The employee is entitled to have the Douglas factors in the proposal letter according to the Douglas decision itself, and to satisfy due process.

If you disagree with any of these, that’s OK here. We’d just hope that you could learn to keep an open mind and do the research yourself for support of an alternative answer. If you’ll do that, we’ll keep answering your questions as best we can based on our experience and education. Join me and FELTG President Deborah Hopkins for a spirited week of discussion during the next MSPB Law Week March 9-13 in Washington, DC. [email protected]