By Dan Gephart, March 13, 2019
Two weeks ago, nearly 16 million people watched Michael Cohen tell the House Oversight Committee about the many illegal, unethical, disreputable, and downright nasty things that he did at his boss’s direction.
Whether you believe the president’s former attorney or not, I’m sure you think that you would, as Spike Lee says, do the right thing if your boss asked you to do something wrong. Heck, I know I would. And no psychology text book or Stanley Milgram experiment is going to change my mind.
This got me thinking about orders disobeyed and generally ignored in the federal workplace. Years of reading MSPB decisions involving charges of insubordination and failure to follow orders leaves me thinking the federal workplace’s problem is different than the one faced by the former Trump Organization lawyer. There are some federal employees, it seems, just looking for a reason — any reason — to ignore their supervisors’ orders.
That’s why every federal employee needs to know what “work now, grieve later” means, especially that first tenet – work now. The employee must follow the supervisor’s order. If not, that employee should be disciplined.
“[A]n employee does not have the unfettered right to disregard an order merely because there is substantial reason to believe that the order is not proper; he must first comply with the order and then register his complaint or grievance, except in certain limited circumstances where obedience would place the employee in a clearly dangerous situation.” Taylor v. HHS, 40 MSPB 106 (1989), citing Gragg v. US Air Force, 13 MSPB 296 (1982).
Ah, the exception. An employee does not have to follow an order that would cause him “irreparable harm.” That would mean orders that are:
- Illegal, whether the order itself is illegal, or obeying the order would be an illegal act.
- An unwarranted psychiatric examination.
An order can also be rejected if it foregoes a Constitutional right.
But let’s be honest here: When we’re talking about orders that cause irreparable harm, we’re talking a miniscule number of cases. The percentage of orders that would fit into the irreparable harm category are so far to the right of the decimal point, they make pi look like a number Count von Count would rattle off on Sesame Street. It’s more likely that an employee would think the supervisor’s order was wasteful, or argue the order falls outside his position description. And in those cases, it’s simple: Work now, grieve later.
Oh wait. We nearly forgot about the Follow the Rules Act, which Congress sneaked through and the president signed in June of 2017. Yes loyal readers, that’s the bill that FELTG Professor Emeritus and Former President Bill Wiley wrote could create a “hellscape scenario” for the federal workplace if passed. Well, it did pass without much fanfare.
The Follow the Rules Act extends whistleblower protections to federal employees who refuse to obey a direct order that would violate a rule or regulation, whereas previous protections extended only to those refusing an order that would violate a law. Bill wrote about a confused employee who thinks she’s being ordered to violate a rule or regulation:
Well, what if it turns out she is wrong? What if her honest belief about what the order meant was simply mistaken? If she is fired for insubordination, if on appeal her argument that the order violated a rule is not affirmed, she has effectively bet her job that her interpretation was correct at the moment she chose to be insubordinate. Why in the world would we want to entice federal employees into this high-risk gamble with their livelihood when there are other ways to protect them from abuse?
It’s a clear no-win situation. It’s something you want to avoid, just like the anarchy that comes from a workforce that disregards supervisors’ orders. That said, if you have a supervisor who has no fear of ordering an employee to something illegal, unsafe, or immoral, then you’re going to be watching someone from your agency testify before Congress while millions watch. Gephart@FELTG.com