By Dan Gephart, April 20, 2021

I was moderating one of the recent webinars in our Supervisory Webinar Series (there are still a lot of great sessions left and you can still register) when FELTG President Deborah Hopkins was discussing the Five Elements of Discipline, specifically establishing legal and valid rules.

“Legally, a supervisor can establish a rule that you can’t say damn in the workplace,” Deb explained.

It’s a good thing I was on mute. If not, attendees would’ve heard me say “Damn right!,” thereby disrupting the presentation, while also breaking the example rule that Deb had just described. Why the overreaction? That “no damn” rule is the first one I would decree as a supervisor. It’s not that I’m prudish. I don’t curse much myself, but it’s not an issue for me if others do, as long as it’s not excessive.

During college, I spent  many hours working in the warehouse of a freight shipping company. I don’t want to name the specific company, other than it’s named after a color and it rhymes with “hello.”

I was promoted from loading the trucks to something called Swak Clerk. I and another young man would scan the boxes before they made their way down the conveyor belt, into a loader’s pile and onto a truck. I was eager to meet the performance standards set for me. Yet, I found it difficult because every few minutes, I’d hear someone scream my name in a very urgent manner.

I’d stop scanning and holler: “What?” This would eventually lead to someone else saying: “What?” After further back-and-forth yelling over loud warehouse noises, I’d realize that nobody called my name. A truck loader had only screamed “Damn!”

These continuous interruptions made it hard to keep up with the performance standards. Things were much worse for my fellow Swak Clerk, who dealt with the exact same problem. His name was Buck.

You can understand why I’d embrace the “no damn” rule. But these kinds of rules have been absent over the last dozen or so months. During that time, employees have worn sweatpants, worked in bed, eaten whenever and wherever they wanted, yelled at their kids, and walked their new dogs during the workday. They’ve done a lot of things they’re not going to be able to do once they return to the physical workplace. Readjusting to unique workplace rules is going to be a little challenging.

The concept of supervisor’s rules is such a basic principle, there isn’t a foundational case that specifically addresses whether small rules set by supervisors are OK.

There were a few cases where supervisor’s rules were questioned, but those cases were adjudicated for completely different reasons. (Safe must be locked at all times when not in use – Chavez v. DVA, 120 MSPR 285 (2013)) (Leave office lights on during work hours – Mogil v. Dep’t of Veterans Affairs, No. 2018-1673 (Fed. Cir. May 1, 2019)) (Men must wear neutral pants but women may wear pants of any color – Shedd v. FAA, EEOC No. 0120073132 (2007)).

The general authority to run the workplace the way a supervisor sees fit comes from 5 USC 301-302:

The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. [Emphasis added.]

If you’re a fellow “Dan” or “Buck,” hard of hearing, or someone who hates mild profanity and you’re looking for more guidance, you should read Pinegar v. FEC, 2007 MSPB 140.

In that case, a GS-12 attorney with a discipline-free record was removed based on two charges: Disruptive Behavior (two specifications) and Making Inappropriate Remarks (seven specifications, including referring to his supervisor’s writing as “crap,” making unseemly accusations, and using a sarcastic or intemperate tone).

The agency had issued “four express warnings” and the employee still did not correct his behavior, so the agency proposed removal, which the MSPB upheld.

For more guidance on rules and everything else involving accountability, register now for UnCivil Servant: Holding Employees Accountable for Performance and Conduct held over two half-days on May 19 and 20. [If you have new supervisors, this course fulfills OPM’s mandatory training requirements for new supervisors. Also, registrants for both days will receive a copy of the textbook UnCivil Servant: Holding Federal Employees Accountable for Performance and Conduct, 5th Ed., by William Wiley and Deborah Hopkins.]

Basically, if your rule makes sense and it doesn’t run afoul of any law, you’re good. But in the coming months, as your employees reacclimate themselves to their old workspaces, you might want to ease up a little on any rules that are more onerous than useful. Gephart@FELTG.com

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