By Dan Gephart, Training Director
Since 2018, our year-end News Flash has unveiled the most popular FELTG newsletter stories (based on the number of reads and forwards) of the previous 12 months. Usually, our most-read stories mirror FELTG Nation’s deep interest in the topics of performance, conduct, telework, and reasonable accommodation. This year was very similar, but the context within which we discussed those topics was unique, to say the least.
The year was only six days old when a violent mob stormed the Capitol, assaulted Federal law enforcement, and nearly ended the peaceful transition of power which we’ve all taken for granted. As the year ends, the ominous Omicron variant is spreading across the country and further delaying efforts to get employees back into the physical workplace.
In between those two events, FELTG and the entire Federal EEO Community lost a true giant when Ernie Hadley suddenly passed away in April. Ernie was a founder and the first President of FELTG. He wrote more than a dozen books – not just any books, but the foundational legal texts of Federal EEO law. He was brilliant, funny, and compassionate – a lover of cars, sports, music, literature. He cared deeply about civil rights. He was unafraid to change directions late in life to pursue a career in publishing.
It was a difficult and often dark year, but there were some bright spots throughout, and you – the Federal workforce – continued to do important work under trying circumstances. To better represent the constantly changing up-and-down nature of 2021, we’ve decided to frame this feature as a month-by-month look at the most-read stories.
For the second straight year, a photo of the U.S. Capitol graced FELTG President Deborah Hopkins’ introduction to our January newsletter. But what a difference a year made. The bucolic long shot of the Mall with the Capitol in the background circa 2020 was replaced this year by a photo of an angry mob of insurrectionists wrestling barriers away from the Capitol police (photo below).
Our most-read story in January was: Can Agency Fire Employee Who Took Part in Capitol Siege? You Decide. It’s not surprising that Deb’s story about disciplining Feds who may have taken part in the riot received so many views and forwards. Off-duty misconduct is a perennial challenge. Meanwhile, our second most-read article Requiring Vaccinations? Follow EEOC Steps to Avoid Discrimination, written by special contributor Frank Ferreri, distilled early guidance for agencies hoping to bring employees back to the workplace. Those hopes were eventually dashed, and we’d see guidance updated throughout the year.
Extreme political polarization has created rifts in businesses across the country. Unfortunately, the non-political Federal workplace was not immune. Our most-read article of February Does Saying ‘All Lives Matter’ Create a Hostile Work Environment? resulted, as is the case with many of our articles, from specific questions we received through our Ask FELTG feature and in our training sessions.
The second most-read article of the month details the story of an EEO director removed from her position and reassigned to another office with no involvement or influence over EEO. Why? Revisit Barbara Haga’s Director of EE Oh No! When HR Practitioners Fail to Perform.
The Federal Circuit’s decision in Santos v. NASA this March was a stunner. The court said that an agency must have substantial evidence that the employee was performing poorly before it is allowed to put the employee on a PIP. Just days after the decision, Deb’s story Say Goodbye to 40 Years of Case Precedent: Agencies Must Justify PIPs broke down Santos, highlighting what’s changed and, just as importantly, what hasn’t.
In the next most-read story EEOC Decision Details Everything a Manager Should Not Do, Meghan Droste dug into another recent decision. Thomasina B. v. Department of Defense serves as a textbook case of everything an agency should not do in a harassment case.
Two recent decisions. Two thoughtful, analytical, and guidance-filled articles. If you know someone who isn’t subscribed to the free FELTG Newsletter, share this link (https://feltg.com/) with them and tell them to scroll to the bottom of the page and subscribe. They will thank you.
In memory of Ernie Hadley’s passing, we republished his 2013 article Are You a Microaggressor?. It was our second most-read story of the month. With microaggressions now a major training point in the Diversity, Equity, Inclusion and Accessibility (DEIA) arena, it proved what we all knew: Ernie was years ahead of the curve.
Our most-read article in April was Deb’s tale about a disruptive service dog who also may not have been very good at her job – The Golden Doodle Who Wouldn’t Nuzzle: A Service Dog or Not?
Do you remember the hopefulness of May? Like many Americans, I had recently received my second vaccination and thought we were closing in on that thing we kept calling “normalcy.” Agencies agreed and started preparing for their employees to return to the workplace, keeping in mind that many would want to continue working from home. We shared 4 Tips to Prepare for Increase in Requests for Accommodation, Telework and it was our most-read story of the month. Meanwhile, Deb shared some great advice for how to handle SESers when they break bad – What You Should Know About SES Discipline.
Summer brought us another report from so-called experts pushing for at-will Federal employment – A Schedule F Look-alike Rears Its Ugly Head. In June’s most-read story, Deb reminded everyone that we don’t need civil service reform. Just follow the rules and hold employees accountable. If you’re not sure how to do that, you don’t need some “think piece” to tell you what to do. Just attend the next UnCivil Servant training on Feb. 9-10.
In our second-most read article, Meghan’s Tips From the Other Side: Retaliation is a Very Real Issue discussed the importance of training to avoid reprisal. This issue is as timely as ever as EEO offices deal with the influx of complaints related to vaccine exemption requests. Join us on January 19 for the webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace.
Some people (I won’t say who) are predicting that we’ll have a fully functioning MSPB next year. But on that great day when a quorum returns to the Board, the new members are going to find they have an “unprecedented Herculean task” ahead of them, as FELTG Past President William Wiley put it in the most-read story of July – The To-Do List for the New MSPB Board Members.
In Should Your Agency Use Progressive Discipline or Performance Demonstration Periods With Probationers? – the second most-read article of the month – Deb answered the question in the headline with both a short answer (No!) and a long one.
The rates of vaccination were continuing to rise and there was hope that it could lead to a return to the physical workplace. The VA announced that some employees would be required to get COVID vaccinations. And then the backlash erupted. (This was before the vaccines were mandated via Executive Order). Government-wide, Federal EEO and HR professionals started to worry. Ann Boehm’s The Good News: If Feds Want to Force You to Discipline Them for Disobeying Mask and Vaccine Rules, You May Do So, the most-read newsletter article of August, explained how and why (based on the information available at that time) to discipline those who refused to get vaccinated.
Speaking of the VA, the Federal Circuit hit the agency with a shocker in August. In Undoing the Last Four Years: Federal Circuit Clarifies the Burden of Proof in VA Discipline, Deb explained what the Fed Circuit decision means for disciplinary actions at the VA.
Following President Biden’s Executive Order 14043 requiring all Federal employees to be vaccinated against COVID-19, FELTG customers had questions. Our most-read story in September was Now that Vaccines are Mandated for Federal Employees, Can You Ask an Employee to Provide Your Agency with a Copy of Their Vaccine Card?
The second most-read story – Well, Excu-u-use Me! Sometimes, Feds Say the Darndest Things – stemmed from Hansen v. DHS, No. 2017-2584. An agency proposed removal after an employee’s positive drug test for marijuana. The employee argued that he didn’t know he consumed a pot brownie at a party. He thought he felt funny from a bad bratwurst, to which the EEOC basically said baloney. [Hansen will be discussed during the 60-minute webinar High Times and Misdemeanors: Weed and the Workplace on March 3.]
As the vaccine mandate took hold, we heard from many of you with questions about how to handle specific scenarios. The most-read story in October – So About That Employee Who Gets Vaccinated After Being Removed – addressed one of the most likely scenarios.
After Rep. Carolyn Maloney (D-NY) asked the Government Accountability Office to look at reforming the Federal EEO process, Ann Boehm jumped in with her thoughts. The Federal EEO Process is Broken: Can We Fix It? was the second-most read story of the month.
Questions about the vaccine mandate continued in November. Our most-read article – Is Removing Fed for Lack of Vaccination a Potential Due Process Violation? – addressed a very real concern.
In our second most-read article, Deb highlighted a recent case involving a USPS letter carrier. The EEOC decision sent a clear message: Partially accommodating an employee without considering all his/her/their restrictions is not reasonable accommodation at all. Read about it in The Word ‘Reasonable’ Is Half of Reasonable Accommodation.
Time and again, we’ve told you: Issuing a letter of caution, warning, expectation, or concern, is more trouble than it’s worth. Deb explains how one of these “lesser letters” came back to haunt an agency in our most-read story of December A Letter of Caution Can Equal Reprisal – or, Another Yellow Donut Case.
And, of course, our second-most read story dealt with the vaccine mandate – Updated Guidance on Vaccine Refusals Just in Time for the Holidays.
If you’re scoring at home, that’s seven months where one of the top two most-read stories involved vaccine mandates. And in the hours after that updated guidance story was published on FELTG’s web site last week, a Federal judge in Georgia issued an injunction on the vaccine mandate for Federal contractors.
I’m sure vaccine mandates and other pandemic-related issues will continue to present challenges for the Federal workplace in the upcoming year. As we did in 2021, FELTG will continue to steer you through those challenges with the most up-to-date guidance.
Happy holidays and best wishes for a great 2022! Gephart@FELTG.com