By William Wiley, March 27, 2018

In one week, I heard some variation of this unfortunate concept three times:

What gives you the authority to do that?

An alternative of this is, “Where does it say we can do that?” I hear this phrase from attorneys, HR specialists, and supervisors, each of whom is trying to decide what to do in a particular employment law situation. For example, in one case an agency used one of its airplanes to observe the backyard of an employee who was suspected of growing marijuana there. “What gives the agency the authority to do that?” In another, the supervisor had contacted the local police and asked them to do a “welfare check” to see if a missing employee was injured or otherwise in trouble. “How do we have the right to call the police?” In another, a supervisor thought he saw a subordinate looking at porn on a personal laptop. When confronted, the employee said he was working on agency business. “Where is the agency policy that allows the supervisor to tell the employee to show him the computer screen?”

Folks, that’s exactly the kind of backwards, bureaucratic mindset that freezes supervisors and makes the agency appear to be impotent relative to holding employees accountable. The question should not be, “Where does it say we can do that?”, but rather, “Where does it say we cannot do that?”

Here’s how we know that this is the better approach:

  • 5 USC 301-302 gives the President the authority to make personnel decisions relative to the Executive Branch and to delegate that authority to subordinate management officials. Therefore, agency supervisors have the authority to run their workplace on behalf of the President.
  • Supervisors can take lawful actions with employees as long as there is a nexus (e.g., a business-related reason) for the action. The reverse, of course, is that if there is no nexus, the supervisor cannot take the action. The Lloyd-Lafollette Act of 1912 called this basing the action on the “efficiency of the service.”
  • Therefore, unless there is a law that says a supervisor cannot do something, as long as the motivation for the action is related to a bona fide business reason, the supervisor can do it.

Does an agency have a business reason for determining whether its employees are violating its marijuana policy? Sure, that’s why they have a policy, to ensure that employees are not violating federal law. How about a missing employee? Does a supervisor have a business reason for being concerned about the safety of an employee who does not show up for work? Of course. As members of society we all have that concern. As an employer, that concern is enhanced by the need to have someone at work doing the job. How about porn in a federal workplace on government time? Can a supervisor take steps to make sure that doesn’t occur? Lordy, I would hope so. If not, we have a drastically different federal workplace than the one our citizens expect (and that I used to be part of).

Of course, there are legal limits to what we can do. If that welfare check was motivated by a desire to harass an employee who had filed a bunch of EEO complaints, that’s illegal. The marijuana fly-over and the laptop viewing cannot run afoul of the Constitutional 4th amendment protections against the government conducting an “unreasonable search.” (They do not, by the way, as the fly-over is a plain-view observation and the personal laptop is fair game for the supervisor because the employee claimed to be doing government work on it.)

The civil service is routinely beat up by politicians and the media for letting bad things happen without our doing anything about it; e.g., workplace sexual harassment, employees on months of paid leave, and inefficient/rude service providers. We even had an OPM director years ago who complained about poorly dressed federal employees, saying that the government does not have a dress code; therefore, she could do nothing about workplace slovenliness. OF COURSE, we have a dress code. It’s what the supervisor says is appropriate for the work being assigned.

The attitude that something specific has to give us authority to act before we can act contributes mightily to the viewpoint that our civil service is not working. Instead of looking for the specific authority to do something, look to see if there’s something that says you cannot. In my experience, you will hardly ever find anything. Wiley@FELTG.com

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