Year in Review: Top FELTG Newsletter Stories of 2024

For six years now, 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.

The Year in Review often reflects the mood in FELTG Nation. And despite some difficult and anxious times for Federal employees over the past year, your optimism has shown through, as evidenced by the popularity of FELTG Instructor Ann Modlin’s monthly Good News article, which shows up eight times in our review. But even more so, this review shows FELTG Nation’s commitment to ensuring accountability in the Federal government.

That’s not to say we haven’t had some head-shaking stories over the past year, as well as a few stories whose details made us all sick, such as the FBI agent making advances on a 16-year-old girl, or the GS-14 employee who was disciplined for licking a young boy’s feet and toes.

Are there any articles you missed?

January

Removal based upon medical inability to perform is an effective and underused process. And in January, most readers dialed in on Ann’s column as she answered your questions about the charge.

Everyone is talking about hostile work environment these days, but too few understand exactly what is. FELTG readers looked to this article by Dan Gephart for guidance.

February

We love to highlight when and how agencies do the right thing, and when it comes to progressive discipline, the National Park Service provided a textbook example in FELTG President Deborah J. Hopkins’s top-read February article. Meanwhile, Ann answered more reader questions, this time about medical documentation.

March

Dia dhuit (hello) to the article that drew the most eyes in March – Deb’s look at claims of discrimination involving St. Patrick’s Day, including denied requests for time off to participate in a parade, and to alter uniform policy to allow a scally cap.

And the good news about this month? Ann was still answering your questions, this time clarifying confusion over misconduct investigations.

April

When you stay on top of case law as FELTG’s instructors do, you come across your share of examples of disturbing conduct. Deb reported on some of these incidents, including an FBI agent who called his advances toward a 16-year-old girl “mere flirtation.”

Our interactive Labor Relations training classes present scenarios where attendees have to determine whether a meeting is Weingarten or a formal discussion. Oftentimes, they answer “both.” That answer is wrong. Ann explained why.

May

Spring brought a precedential MSPB decision, which added a new step to how an agency determines what absences can be tabulated to meet the “beyond a reasonable time” standard in excessive absence removals. Deb offered her take on the ruling.

Meanwhile, Ann shared superb guidance on harassment from the EEOC’s updated Enforcement Guidance.

June

Rudeness is running wild everywhere, even in the Federal workplace. The behavior detailed in our most-viewed June article is misconduct and as Dan highlights, should not be ignored. In fact, the MSPB noted in one decision it has “frequently held that rude, discourteous, and unprofessional behavior in the workplace is outside the accepted standards of conduct reasonably expected by agencies and can be the subject of discipline.”

Despite understanding the value and importance of reasonable accommodation, supervisors often fear that initial request. But it should not be scary, Ann wrote.

July

When you work from home and share your camera for a Teams or Zoom meeting, your background becomes an extension of the workplace. Ann reminded us of the rules that apply to what you display in your home office.

Frank Ferreri asked: How long is too long for a delay of reasonable accommodation? It’s hard to say, but four years? Um, yes, that is clearly too long.

August

Agencies have the perfectly legal option of handling performance issues under the misconduct procedures in Chapter 75. When should you take that path? How does it work? Deb looked at an MSPB decision that provided some answers.

Frank answered that oft-asked question: Must the employee get the specific accommodation he requested?

September

Readers focused on Deb’s story about the law enforcement officer who bit his wife during an altercation, then claimed she bit herself. Despite the strong removal case against the LEO, he was reassigned instead. To find out why, revisit the article.

Time and again, agencies struggle with reasonable accommodation requests for telework. Frank Ferreri wrote about a recent D.C. Circuit Court of Appeals decision that flipped the script. What if telework is the only accommodation offered – and the employee doesn’t want it?

October

The disturbing stories continued as Deb wrote whether Douglas factors had to be considered when the misconduct involved licking a child’s feet.

Speaking of Douglas factors, we are often asked who should do the analysis. Ann provided the straightforward answer: It’s the proposing official.

November

An employee says he should be exempt from training that discusses the law surrounding LGBTQ+ protections because the subject matter contradicts religious beliefs. How should the agency handle this request for exemption? Is it a request for religious accommodation? Deb explains.

Meanwhile, Dan explained why last chance agreements must make it clear that any future misconduct or unacceptable performance will be considered a breach.

December

Concerned about RIFs? You’re not alone. We answered a reader’s question this month regarding MSPB appeal rights when subjected to a reduction in force, and it is our most-read December article.

If you’ve been humming “What a Fool Believes” over the past few days, you probably read the article on AWOL, where Dan discussed when and why it’s applicable to remove an employee with that charge.

A Final ‘Word’ …

Over the course of 2024, we interviewed numerous Federal employment law and workplace leaders as part of our regular “And Now a Word With …” feature. The two interviews that drew the most reads this past year were our recent discussion with FLRA Member Anne Wagner and our June follow-up interview with MSPB Vice Chair Raymond Limon.

Happy holidays and best wishes for a great 2025. info@feltg.com

And Now a Word With … MSPB Member Henry Kerner

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By Dan Gephart, December 3, 2024

A few days ago, we caught up with Merit Systems Protection Board member — and former Special Counsel — Henry Kerner as he closed in on the six-month mark of his term.

“That’s not a long time, but enough to get my footing,” Kerner said of his time at the Board. “Transitioning from a prosecutor to a judge is a shift in mindset, but it’s one I’ve really enjoyed. Back in California, I had colleagues in the DA’s office who made similar transitions, so I was somewhat familiar with the process. This is a great place to work — collegial, supportive, and focused on doing the right thing every day.”

I asked Kerner about the impact of the incoming administration on the functions of the MSPB.

“The MSPB continues its important work,” he said. “As Board members, we each have defined terms — mine runs through 2030. I’m sure other Board members feel the same way about their terms. Unlike some other agencies that might experience frequent turnover, it’s less common at independent agencies, though it’s always hard to predict the future.”

“Our mission remains steady,” he continued. “The merit principles endure and enforcing them is central to what we do. We’re committed to serving the Federal community and ensuring those principles are upheld.”

DG: First off, congratulations to you, the other members, and the agency for nearly wiping out the inherited  inventory. What’s the mood like there now? 

HK: It seems like people are pretty happy and relieved to have that burden lifted. There’s definitely a sense that we’ve reached a level of normalcy again. I really have to give credit to Ray Limon, Cathy Harris, my predecessor Tristan Leavitt, and, of course, the career staff. It’s been an all-hands-on-deck effort, so I want to extend my gratitude to everyone involved.

Having a full Board — not just a quorum — is a significant milestone for the MSPB and has been especially meaningful for staff who are new and have never worked under a fully staffed Board. Even during the period without a full Board, parties continued filing petitions for review, with about 500 new ones coming in every year. Now, a fully functioning MSPB can provide stability and predictability, which is beneficial for employees, agencies, and the entire Federal ecosystem.

DG: How has your stint as Special Counsel helped you in your transition to the MSPB?

HK: When I became Special Counsel, I found the office in pretty good shape. While I adjusted some priorities and made a few tweaks, the foundation was solid. Coming into the role, I didn’t have much experience in the Federal employment world. My background was primarily as a prosecutor — 18 years in California before moving to D.C. to work on Capitol Hill. That prosecutorial and congressional investigatory experience turned out to be great training for Special Counsel, but I had to build my knowledge of Federal employment law from scratch.

For instance, as a prosecutor, you develop shorthand for legal concepts — like “211” for robbery under the California penal code. Federal employment law has its own language, like “2302(b)” for prohibited personnel practices, which I had to learn on the job. By the time I transitioned to the MSPB, I had a much stronger grasp of that language and the nuances of Title 5. Having spent six years in this world, handling cases with the MSPB and interacting with other agencies, I was able to bring that experience to my new role, which has been incredibly helpful.

DG: How does your role at MSPB differ from your time at OSC?

HK: The job at OSC was primarily a management role — I was the head of the agency with significant management responsibilities. Here at MSPB, I’m a Board member, not the Chair, so I don’t have as much management responsibility.

DG: You bring a lot of expertise and experience on whistleblowing to the MSPB. What is something about the law or the Federal workplace that you only learned as a Board member?

HK: On the whistleblower side, I’m recused from many cases, given my prior role at OSC. Interestingly, some of the matters that come before the Board are areas where I don’t have much prior experience. For example, retirement cases — like disability retirement, FERS retirement, or law enforcement retirement — weren’t something I dealt with much while at OSC.

It’s been an adjustment. The things I know the most about, I now handle the least, and the things I know the least about, I’m doing the most. That said, with the volume of cases we handle, I’ve started to recognize patterns and develop familiarity with these new areas.

DG: Based on the cases you’ve reviewed, what stands out most when it comes to mistakes by Federal supervisors?

HK: I haven’t been at the Board long enough to make a comment on that, but one area that stands out is nexus cases. In misconduct cases, there must be a connection—or nexus—between the conduct and the employee’s duties or the agency’s mission. When the conduct occurs on duty or at the agency, the nexus is almost presumed. But when the behavior happens off duty, such as in a neighbor dispute or a car accident, the connection becomes less clear.

Sometimes, the behavior might not rise to the level of criminal charges but is still used by managers as a basis for discipline. These cases are complicated because they highlight the fine line supervisors must navigate. As Board members, one challenge we face is being limited to the record before us — we don’t always have the full context or history behind the situation.

Many cases involve long-standing workplace issues, but without a fully developed record, it can appear as though the incident is isolated. It’s crucial to ensure the record reflects the broader history and context. When the record isn’t as complete as it could be, it can make evaluating an adverse action difficult, and in some cases, the agency’s decision might not be fully supported by the available evidence.

DG: What trends are you noticing in new PFRs being filed? 

HK: Towards the end of my tenure at OSC, and now occasionally at MSPB, I’ve noticed political viewpoint discrimination cases starting to emerge. It’s not entirely surprising given the current political climate, but it’s something I observed at OSC and see sporadically here as well. While I wouldn’t label it a full-fledged trend yet, these cases have certainly caught my attention, and I wouldn’t be surprised if they become more prevalent over time.

gephart@feltg.com

Related training:

And Now a Word With … FLRA Member Anne Wagner

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By Dan Gephart, November 19, 2024

When Anne Wagner sat down to talk with FELTG over Teams late last month, it had been less than three months since she was sworn in as a member of the Federal Labor Relations Authority (FLRA). But this is far from Wagner’s first rodeo. She spent the previous nine years as Associate Special Counsel in the Office of Special Counsel. Before that, she was a long-time member at the Merit Systems Protection Board (MSPB), serving as vice chair.

And all that was preceded by nearly 20 years as an attorney for the American Federation of Government Employees (AFGE).

“Yes, I’ve had a long career all within the civil service framework. The one common thread in my experience at the MSPB, OSC and here at FLRA is how after 40 years or so that the Civil Service Reform Act and all the extensions within it have been in effect, you’d think everything that could’ve been decided would have already been decided. But it’s incredible how many cases present novel issues and fact patterns that are unusual. It continues to be a very vibrant area of law.”

“In all three instances, I have been struck by the extraordinary commitment of the staff at each agency to their respective missions, the talent that each agency has been able to acquire and sustain, and their dedication to providing high quality work.”

DG: How do your early days at FLRA compare to the similar time frame at MSPB and OSC?

AW: In both instances (FLRA and MSPB), I came in at a time when there were a lot of cases awaiting decision. So, I pretty much had to jump in the deep end of the pool. As daunting as that can be, personally, I find that suits me. I don’t have to think about this new experience. I have to get very focused very quickly on the job I was asked to do.

I’ve now had some time to step back and reflect. In all of the agencies, my colleagues have been wonderful and the cases themselves are interesting and challenging.

DG: What lessons have you learned from those previous jobs that you will apply to your role at FLRA?

AW: The most important lesson is the fundamental importance of active listening. By that I mean, both in terms of listening to staff and work colleagues, but also active listening in terms of the parties. Deep attention to the submissions they filed, or certainly in terms of any kind of communication with them. I think it’s so important to be able to fulfill what we’re charged to do, and that’s been a central guiding truth that has helped me throughout.

In terms of leadership, the primary requirement is to establish trust. I know that seems formulaic to say that. But trust ties in with active listening, that people really believe you’re listening to them, not necessarily agreeing with them, but actively taking in what they’re saying and that you mean what you say and say what you mean.

DG: What is a common thread throughout your career in labor-management relations? 

AW: What has remained the same is the dynamic relationship that agencies and unions have sustained over the course of the Federal Service Labor-Management Relations Statute. In some sense, that dynamic relationship has enabled both management and unions to adapt to the continuous and significant changes facing the Federal government and its workforce.

DG: What is the most pressing issue for the FLRA at this time?

AW: The budget. Our current budget for FY 24 is $29 million or so, which is the same amount of the FLRA’s budget in 2004. That’s not sustainable. We have, I think, half of the FTEs that we had back in 2004. And our caseload has increased. We’re understaffed and definitely would like to see the budget increased to be able to sustain if not add to our capacity to address the thousands of cases that come to us.

DG: Since 2021, FLRA scores on Best Places to Work have improved, and the agency regularly ranks high among smaller agencies. To what do you attribute these scores, and where is an area you’d like to see improvement?

AW: I haven’t been here long, but I can reasonably say that it’s leadership’s commitment to employee engagement. It’s the recognition that individual employee interest is aligned with the FLRA’s mission. To reiterate, the FLRA’s staff has a tremendous commitment to our mission. Also, the leadership instituted a labor management forum that was designed to specifically address employee concerns expressed through the FEVS.

That’s really important. We did something similar at OSC, and it really does move the needle — and not just artificially or superficially. When employees believe that the leadership is genuinely interested in making work life better, it changes how they feel, and that’s reflected in the FEVS.

DG: If you can impart one piece of wisdom to those who supervise bargaining  unit employees, what would it be?

AW: Going back to what I suggested before: Working toward mutual trust is essential. To recognize that unions and bargaining unit employees are as dedicated to achieving the agency mission as management. And keeping that in mind, to work from that foundation of commonality and sustain the trust. gephart@feltg.com

Related training:

The Board Offers Guidance, But Not Much Help, on the New Excessive Absence Standard

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By Deborah J. Hopkins, November 5, 2024

Quick facts:

  • In excessive absence cases, the MSPB now only considers absences beyond the date the agency warns the employee to return to work.
  • The Board did not instruct agencies how much absence post-warning would meet the “excessive” standard.
  • In a new MSPB case, the Board held that 200 hours of absence post-warning did not satisfy the excessive absence Cook criteria.

Remember earlier this year when the MSPB changed the requirements for excessive absence removals in Williams v. Commerce, 2024 MSPB 8 (Apr. 23, 2024)? If not, then you’ll want to update yourself here and then come back to this article for the latest development on excessive absence removals.

Generally an agency is not allowed to discipline an employee for being on approved leave, but an exception exists if the agency can show:

  1. The employee was absent for compelling reasons beyond his control;
  2. The absences continued beyond a reasonable time, and the agency warned the employee that an adverse action would be taken unless the employee became available for duty on a regular basis; and
  3. The position needed to be filled by an employee available for duty on a regular basis.

Cook v. Army, 18 M.S.P.R. 610 (1984).

Earlier this year the Board held in Williams that under element 2, an agency may not consider any absences the employee accrued BEFORE the agency warned the employee he would be removed if he did not return to work by a specific date; the agency may only count absences that occur AFTER the warning.

But Williams involved over a thousand hours of absence post-warning, so our biggest unanswered question after reading the case multiple times:

  • Exactly how many hours of absences will the Board determine is “excessive” post-warning?

Over a thousand hours, as in Williams, sure. But what about 800? 500? 200? Williams didn’t give us any indication where the lower end of the threshold would be, except when it alluded to Gartner v. Army, 104 M.S.P.R. 463 (2007), where the agency successfully proved an excessive absence charge when an employee was absent 333.5 hours during a 6-month period.

Which brings us to today. An employee was removed for excessive absence after she was absent for 1,400 hours over a one-year period. Butler v. FDIC, DA-0752-20-0060-I-1 (Oct. 22, 2024)(NP). In Butler, where the events occurred in 2017 and 2018, the Board retroactively applied Williams and found the agency failed to prove its excessive absence charge because only 25 days (or 200 hours) of straight absence occurred after the agency warned the appellant she was required to return to work. According to the Board:

Such a relatively short period of absence does not prove an excessive absence charge. Stated another way, 25 days of absence is not sufficient to establish that the appellant’s absence continued beyond a reasonable time, and therefore, the agency has not proven its charge of excessive absence. 

Williams at 4-5.

This is the time in the article I’d like to say, “But wait, there’s more!” Except there isn’t more. The Board left it at that and didn’t indicate ANYTHING about how many hours it would take for the agency to meet the “excessive” standard; it reversed the removal and ordered the agency to reinstate the employee with back pay.

Because the line here is not clear, and because we have mountains of case law that shows an agency can justify an AWOL removal for far fewer than 200 hours, at FELTG we are strongly considering moving away from the excessive absence approach altogether, and instead ordering the employee to return on X date, informing them they will be carried AWOL if they do not return, and effecting the AWOL removal after two weeks, if the employee does not report back.

If you have thoughts on this, or if your agency is taking a different approach, please feel free to share. hopkins@feltg.com

Related training:

·     Feds Gone AWOL: What to Do When Employees Don’t Show Up, Feb. 6

Inappropriate Sexual Conduct Costs CBP $40K in Compensatory Damages

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By Deborah J. Hopkins, October 29, 2024

Quick facts:

  • A CBP officer intentionally exposed his penis to the complainant.
  • The agency found the complainant was subjected to a hostile work environment based on that and other incidents.
  • Additional legal research shows the agency removed the harasser for his misconduct.

No matter how much awareness we bring to the topic, there are still far too many instances of inappropriate sexual conduct in the workplace. And when the conduct is not addressed promptly, it can cause continuing harm to the victim.

Consider the case involving a Customs and Border Protection (CBP) officer, in Buffalo, NY. Lelah T. DHS/CBP, EEOC Appeal No. 2021001401 (Aug. 16, 2022). The agency issued a FAD finding the complainant was subjected to a hostile work environment based on sex when:

  • On November 30, 2016, a co-worker (CW-1) pulled down his pants to reveal his camouflage boxer shorts to the complainant.
  • On March 5, 2017, co-worker 2 (CW-2) called the complainant’s name so she would turn her head and look at CW-1, who was exposing his genitals to her.
  • In August 2016, CW-1 and co-worker 3 (CW-3) had conversations in the office about pulling out their genitals in the office and having erections during work and training sessions, and CW-1 said he “worked up a chub” and “put it on the desk” for CW-3 to look at.
  • On August 19, 2017, CW-1 told Complainant he was upset that he was investigated by the Office of Inspector General (OIG) regarding her accusations that he was trying to intimidate, threaten, and discourage her from pursuing her complaints after management issued CW-1 a “cease and desist” memorandum to stay away from Complainant, effective May 5, 2017.
  • In or around August 2017, Complainant was forced to remove herself from the Tactical Terrorist Response Team (TTRT) and enter the bargaining unit to bid on a new position due to the harassment by CW-1.

Id. at 1-3.

In her complaint and signed declaration, the complainant said that as a result of the harassment, she experienced “extreme emotional distress and humiliation,” that “she felt humiliated and anxious as a result of the harassment,” and that “she was concerned for her overall health and safety.” Id. at 13.

The complainant requested, among other things, $125,000 in non-pecuniary compensatory damages, but the agency awarded $40,000 and the EEOC concurred with that amount. The award may have been higher, except some of the statements the complainant submitted in support for her $125,000 request were not signed, and the complainant’s personal statement was also not submitted.

If you’re wondering what happened to the harasser, the case doesn’t tell us. Because EEO cases use pseudonyms, we don’t know his identity. However, the decision does mention “an MSPB proceeding related to the removal of Complainant’s harasser” in relation to an attorney fees request. I surmised that CBP must have removed the harasser, and he must have appealed.

So, I did a little research, which led me to a case involving a Buffalo, NY-based GS-12 CBP officer’s removal for “exposing [his] penis in the workplace.” Burbas v. DHS/CBP, NY-0752-18-0222-I-2, p. 1 (June 13, 2024)(NP). I had a suspicion the appellant might be the harasser from Lelah T., but the NP decision was a bit vague on the details, so I went to the Burbas initial decision (Aug. 26, 2019). After reading the facts there, I am 99 percent certain this is the discipline side of Lelah T. (At least, I hope this didn’t happen more than one time in the Buffalo sector – and once was one too many times.)

Despite the appellant’s claim he meant his conduct as a joke, the AJ and the Board both upheld the removal. hopkins@feltg.com

Related training:

Indefinite Suspensions: When an Agency Suspends Access to Classified Information

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By Deborah J. Hopkins, September 24, 2024

We have been discussing indefinite suspensions in a series of articles over the past few months. As a reminder, an agency may indefinitely suspend an employee in three instances:

1. The agency has reasonable cause to believe an employee has committed a crime for which a sentence of imprisonment could be imposed;

2. The agency has legitimate concerns an employee’s medical condition makes his continued presence in the workplace dangerous or inappropriate; and

3. The agency has suspended the employee’s access to classified information and the employee is required to have access in order to do his job.

Sanchez v. DOE, 117 M.S.P.R. 155, ¶ 10 (2011).

If you missed them, check out the previous articles on indefinite suspensions for criminal conduct and medical conditions.

Today, we’ll focus on the third instance, indefinite suspensions when an employee’s security clearance has been suspended.

What types of things might cause an employee to lose a security clearance?

Despite common misconceptions that anyone who loses a clearance must be attempting to sell national security secrets to a foreign adversary, a number of factors (known as the adjudicative guidelines) can impact an employee’s clearance – and not all would constitute misconduct. The 13 guidelines below identify the broad areas that impact an employee’s potential for a clearance, and include detailed information about why each of these areas is a potential concern, which conditions could raise a concern and be disqualifying, and which conditions could mitigate security concerns.

  • GUIDELINE A: Allegiance to the United States
  • GUIDELINE B: Foreign Influence
  • GUIDELINE C: Foreign Preference
  • GUIDELINE D: Sexual Behavior
  • GUIDELINE E: Personal Conduct
  • GUIDELINE F: Financial Considerations
  • GUIDELINE G: Alcohol Consumption
  • GUIDELINE H: Drug Involvement and Substance Misuse
  • GUIDELINE I: Psychological Conditions
  • GUIDELINE J: Criminal Conduct
  • GUIDELINE K: Handling Protected Information
  • GUIDELINE L: Outside Activities
  • GUIDELINE M: Use of Information Technology

What proof does an agency need to justify an indefinite suspension when an employee’s access to classified information has been suspended?

As we have discussed previously, the four elements the Board looks for when it reviews indefinite suspensions are:

(1) The agency imposed the indefinite suspension for an authorized reason;

(2) The suspension will have an ascertainable end (an event that will end the suspension);

(3) The indefinite suspension has a nexus to the efficiency of the service; and

(4) The indefinite suspension is reasonable under the circumstances.

Hernandez v. Navy, 120 M.S.P.R. 14, ¶ 6 (2013). The authorized reason here is the suspension of a security clearance pending a determination about revocation, and the lead case is Jones v. Navy, 48 M.S.P.R. 680 (1991).

How are indefinite suspensions related to security clearances different than the other types of indefinite suspensions?

When it comes to security clearance suspensions and revocations, the Board does not have the authority to review the underlying merits of an agency’s decision to suspend or revoke an employee’s access to classified information. Navy v. Egan, 484 U.S. 518, 530-31 (1998). The grant of a security clearance to a particular employee is a sensitive matter and the denial of access to classified information is entrusted to the sole discretion of the agency; the Board also lacks the authority to review any argument related to the nexus between the employee’s alleged conduct and the suspension of their security access. Id. at 536.

Unlike most other MSPB appeals, the Board is also precluded from reviewing allegations of prohibited discrimination and reprisal when such affirmative defenses relate to the revocation of a security clearance. Pangarova v. Army, 42 M.S.P.R. 319, 322 (1989).

What can trigger the end of the indefinite suspension?

There are three options:

1. After the investigation, the agency does not revoke the employee’s security clearance and the suspension of access to classified information is lifted. If this happens, the employee should be promptly returned to duty.

2. After the investigation, the agency revokes the employee’s security clearance and informs the employee in writing. In this case, the employee may accept the result and resign or retire, which could end in the indefinite suspension. If the employee wishes to appeal the revocation of their clearance, typically during this appeal, the employee would remain on indefinite suspension pending the outcome of the appeal.

3. If the employee does not appeal the revocation but also does not resign or retire, or if after appealing the revocation, the revocation stands, the employee should be given a notice of proposed removal for failing to maintain a security clearance. Jones v. Navy, 48 M.S.P.R. 680, 683 (1991).

How should an agency handle removing the employee whose clearance has been revoked?

The employee obviously cannot stay in the position if a clearance is required. While reassignment to a position that does not require a clearance may be an option (depending on the underlying reason for the revocation), below are the elements required to justify removing an employee for failing to maintain a security clearance:

  1. The agency determined that the position required a security clearance,
  2. The agency revoked or denied the clearance,
  3. The agency provided the employee adverse action rights, and
  4. The deciding official considered reassignment to a non-sensitive position.

Egan, 484 US at 521-522. On element 4, unless the agency has a statute or regulation that creates a substantive right to reassignment, the Board may not require the agency to reassign the appellant to a position that does not require a security clearance or access to classified information. See Ryan v. DHS, 793 F.3d 1368 (Fed. Cir. 2015).

One final note, removing an employee for failing to maintain a security clearance is a nondisciplinary action. As such, the Douglas factors are not required. Munoz v. DHS, 121 M.S.P.R. 483, ¶ 15 (2014).

hopkins@feltg.com

Related training:

And Now a Word With … OSC’s Hatch Act Unit Chief Ana Galindo-Marrone

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By Dan Gephart, September 17, 2024

Televised debates and annoying political advertisements can only mean one thing: It’s election season again, and the Office of Special Counsel’s Hatch Act Unit is busier than the restaurant kitchen in TV’s fictional The Bear.

In recent years, the most-common Hatch Act violations have involved the use of social media to engage in on-duty political activity. But each election season seems to bring some new surprise.

Ana Galindo-Marrone, Chief of the Office of Special Counsel’s Hatch Act Unit, generously took some time from her hectic schedule to answer our questions.

DG: Regarding inquiries or violations, what is a new issue that you hadn’t dealt with before?

AG: OSC has recently updated its position on Federal employees displaying political candidate merchandise after the election. We previously advised that once an election is over, it is okay to display such items. However, Special Counsel [Hampton] Dellinger has instituted a year-round ban on displaying materials related to a current or contemporaneous political figure no matter if it’s before or after an election. A current or contemporaneous political figure is an incumbent Federal elected official and/or someone who has ever received a political party’s nomination for President of the United States and is still living.

We also receive many inquiries about whether issue advocacy violates the Hatch Act, which we advise would generally not violate the Hatch Act, absent any accompanying message in support of a political candidate, party, partisan political group, or other electoral-focused message.

DG: Here’s an example of an advocacy issue – the Israel-Hamas war. Have you received any questions about it and, if so, what is your guidance?

AG: OSC has received numerous questions regarding whether the Hatch Act restricts Federal employees from expressing their views about the current conflict between Israel and Hamas and other related topics. In response, OSC issued an advisory opinion to inform Federal employees of when and how the Hatch Act might apply to such speech.

The relevant provision of the Hatch Act prohibits employees from engaging in political activity while on duty or in the Federal workplace. Speaking about the ongoing conflict between Israel and Hamas is not political activity unless that speech also shows support for, or opposition to, domestic political parties, partisan political groups, or candidates for partisan political office.

DG: What about flags in the workplace — pride flag, blue lives matter flag, upside down flag?

AG: If if it is not connected to electoral advocacy, it does not violate the Hatch Act.

DG: Is it OK to have political bumper stickers? And, if so, do you need to hide them if entering the agency’s parking lot?

AG: While the Hatch Act prohibits Federal employees from engaging in political activity in a Federal workplace, the Hatch Act regulations specifically state that an employee may place a partisan political bumper sticker on his personal vehicle and park that vehicle in a Federal parking lot or garage.

Even if an employee has bumper stickers for two different candidates on their car, we do not believe it violates the Hatch Act. Employees must be cautioned, though, against displaying other partisan political materials, or even bumper stickers, in such a way that makes the vehicle appear to be a campaign mobile.

DG: Can you follow an agency political appointee on LinkedIn?  And, must you no longer follow that person if they run for office?

AG: Yes, you can follow an agency political appointee on LinkedIn. Should the individual run for office, you can still follow that person. But Federal employees who follow a candidate must be careful not to engage in activity in support of the candidate while on duty or in the Federal workplace.

DG: What is your guidance on quotes by politicians in email signature lines?

AG: We advise that employees may not use work email signature lines to show support for political parties or candidates by displaying their quotes or campaign slogans.

gephart@feltg.com

Related training:

And Now a Word With … Mika Cross

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By Dan Gephart, September 3, 2024

During the pandemic we learned that, yes, most employees can be trusted to perform their jobs when not physically present in the office. A Government Accountability Office report stated: “Telework generally appeared to positively affect productivity.”

Yet, many agencies, along with state and local governments, are pushing employees to return to the office. Meanwhile, many Federal supervisors have shared with us the challenges of managing a hybrid team.

Mika Cross, workplace transformation strategist at Strategy@Work, has been touting the benefits of remote work since long before the pandemic. And her passion has not wavered.

“Federal agencies have a unique opportunity to shape a more inclusive, flexible, and productive workplace,” she said. “One key area to focus on is embracing hybrid work models. By blending remote and in-office work, agencies can cater to diverse employee needs, enhancing work-life balance and overall job satisfaction while boosting productivity and better ways of working together.”

Adopting a hybrid model alone is not enough to transform a workplace. “Agencies should invest in initiatives that support employee well-being, such as mental health resources, flexible schedules, and wellness programs. Recognizing and addressing the unique challenges faced by remote workers can lead to a more engaged and productive workforce.”

We caught up with Cross for a brief conversation as she put the final touches on her Sept. 10 FELTG Virtual Training event Designing Inclusive, Healthy and Connected Workplaces Across a Distance.

DG: What is currently the biggest threat to employee wellbeing in the Federal workplace?

MC: In today’s digital workspace, effective collaboration is more crucial than ever, yet many organizations struggle with it. The shift to remote work has highlighted gaps in collaborative skills, making it essential to foster a culture of teamwork and communication, even virtually.

Meeting culture and poorly designed meetings can drain time and energy without yielding results, so streamlining meeting structures and focusing on clear outcomes is key to transforming productivity and helping to safeguard employee wellbeing.

High stress levels, increased workload and low morale are alarming. Data from the McChrystal Group show that 65 percent of government employees feel burnt out, compared to 44 percent in the private sector. Addressing these issues is vital for employee well-being as these issues affect physical well-being, work performance, productivity and attrition. An unsupportive environment can hinder productivity and inclusivity, making it crucial to create a safe and respectful workplace.

DG: You talk a lot about connectivity. How would you define it?

MC: Connectivity refers to the degree to which individuals, teams, and organizations are cohesively and positively linked, both internally and externally. It includes a variety of factors, such as effective and transparent communication, collaboration, and information flow. In the context of what I like to call “instrumental assistance” or … “helping each other out,” connectivity also involves cultivating a culture that enhances the ability to share knowledge, resources, and support effectively.

DG: How do you measure it?

MC: Measuring connectivity can be done through various methods. Network analysis examines relationships within a group or organization, using metrics like centrality, density, and bridging. Social network surveys assess the strength and frequency of interactions among individuals, asking questions like “How often do you seek help from colleagues?” or “Who do you turn to for advice or help when you need it?”

Employee surveys, listening sessions, pulse checks, and feedback mechanisms provide valuable insights into connectivity by capturing employees’ experiences and perceptions.

Tracking the effective use of collaboration tools, such as shared documents and chat platforms, also provides insights, with high usage indicating active collaboration. Connectivity often correlates with organizational performance, with metrics like project completion time, innovation, and employee satisfaction indirectly reflecting connectivity. Connection also enhances productivity, creativity, innovation, and overall well-being in the workplace.

DG: Some supervisors will tell you that it’s hard to create that connectivity when so many are working remotely. Can you provide an example of how to ensure connectivity within a hybrid team?

MC: Maintaining connectivity in a hybrid team can be challenging, but there are effective strategies to foster collaboration and engagement. One approach is to designate specific time slots for “virtual office hours.” During these hours, team members can connect with supervisors or colleagues for informal discussions, questions, or updates. Encouraging remote employees to participate actively in these sessions provides an opportunity for personalized interactions and builds stronger connections. Supervisors can use this time to address individual concerns, provide guidance, and offer recognition.

Another strategy is to invite staff to contribute questions, topics, or ideas related to the agenda before, during and after team meetings. Using collaboration tools or email to collect input ensures everyone has a voice. During the meeting, acknowledging those who contributed and discussing their ideas reinforces engagement and encourages ongoing participation. Keeping the door open for additional contributions beyond the meeting and encouraging continuous feedback from all team members is also crucial.

Incorporating optional team-building activities and fun sessions can enhance connectivity. Trivia sessions based on the organization’s mission or history, lunch and learns, virtual mentoring sessions, and team “watch parties” or learning events can all foster a sense of community and engagement.

For both in-person and virtual connection time, consider organizing hybrid events where some team members gather in person while others join virtually. Examples include hybrid team-building exercises, where in-person participants and remote colleagues collaborate on challenges or games. Hosting regular “coffee chats” or “mentoring sessions” where team members can join from anywhere helps ensure no one feels left out. Additionally, offering virtual and in-person events and engagement sessions, multiple times on different dates and time slots, allows everyone to participate in professional development opportunities regardless of where and when they work.

Proactive communication and intentional efforts to involve remote team members are essential for maintaining connectivity in a hybrid work environment. By providing various options for connection and ensuring inclusivity, organizations can create a cohesive and engaged team.

DG: What are some of the equity issues you’ve seen arise as the workplace went remote?

MC: Increased remote and hybrid work has brought several equity issues to light, particularly in the Federal government. One major concern is proximity bias, where employees who are physically closer to decision-makers tend to receive more attention, opportunities, and recognition. This can lead to an unequal distribution of resources and career advancement.

Another issue is recency bias, where supervisors may focus on recent performance or interactions, overlooking long-term contributions. This can affect performance evaluations, promotions, and rewards.

DG: Are there solutions for addressing those equity issues?

MC: It’s essential to establish transparent metrics for performance evaluation. Decisions should be based on objective data rather than subjective impressions, with regular reviews to ensure fairness. Encouraging structured feedback sessions between supervisors and remote employees can help discuss accomplishments, growth areas, and development opportunities, while addressing any biases that may arise.

Rotating leadership roles or project ownership among team members can ensure diverse perspectives and prevent the concentration of influence. During virtual meetings, it’s important to actively involve remote employees, using video conferencing to create a sense of presence and encouraging participation from all team members.

Recognizing that remote employees may have different time zones or family responsibilities, offering flexible schedules can accommodate diverse needs. Providing training that focuses on building inclusive cultures is also crucial and should be mandatory for all supervisors and team members. Promoting equity in remote work requires intentional efforts, ongoing assessment, and a commitment to fairness!

DG: Which groups would be hurt the most if the Federal workplace returned to pre-pandemic levels of remote work?

MC: The short answer? Most of us might if we moved back to a more inflexible work model.

If the Federal workplace returned to pre-pandemic levels of remote work, several groups would be significantly impacted. Younger generations, such as Millennials and Gen Z, who have become accustomed to the flexibility of hybrid and remote work, might struggle with work-life balance and overall well-being. Employees with disabilities would face reduced accessibility and increased barriers, as remote work offers them the necessary flexibility. Caregivers managing responsibilities for children or elderly parents would find it challenging to balance their roles without the flexibility remote work provides. Additionally, diverse communities could see a setback in diversity and inclusion efforts, as remote work has allowed for a broader talent pool beyond geographic limitations by tapping talent outside of headquarters and metropolitan office locations where there is generally a higher cost of living (which could also be a barrier to employment.)

From a generational perspective, Baby Boomers might prefer in-person interactions but still value flexibility. Gen X employees favor hybrid models that offer autonomy and adaptability. Millennials and Gen Z prioritize flexibility, purpose-driven work, and work-life integration, making them more resistant to a full return to the office. A focus on age-inclusive teams and training is key to prevent creating a divide or ineffective team performance.

Federal workplace trends show a mixed approach: While some agencies have reduced full-time remote work, emphasizing in-office presence, other Federal agencies continue to maintain hybrid models, recognizing the benefits of remote work. Recruitment and retention, especially in sectors like IT and healthcare, remain challenging, and remote work can help alleviate burnout and turnover.

In summary, a rigid return to pre-pandemic office norms could disproportionately affect younger generations, caregivers, and diverse communities who already experienced different challenges to employment and career advancement. Balancing flexibility, productivity, and well-being is crucial for the future of the Federal workplace.

DG: We keep hearing that remote work is a great recruitment tool. Is there any data to back that up?

MC: During the height of the pandemic when remote jobs were on the rise in the Federal government, interest in Federal positions as measured by the number of visits to USAjobs.gov, increased by nearly 3 percent. The Office of Personnel Management also cited increases in the diversity of applicants and an increase of applicants in certain remote positions as high as 25 percent more than those positions that do not offer remote or telework options.

Exploring the data on remote work as a recruitment tool, particularly for the Federal workforce, reveals some compelling trends. Reducing office space can save the taxpayers and agencies millions of dollars that can be invested in modernizing technology to deliver services to the citizens and invest in career development, skills enhancement, and modernization of the workforce. The data supports remote work as a powerful recruitment tool, offering flexibility, access to a broader talent pool, and cost-effective solutions for the Federal workforce. 

gephart@feltg.com

Related training:

Agency Blatantly Fails to Accommodate Breastfeeding Employee

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By Deborah J. Hopkins, August 19, 2024

Quick facts:

  • The EEOC ruled for the employee, after the agency failed to provide a legitimate, nondiscriminatory reason for denying the complainant access to a clean lactation facility.
  • The employee was told to go home so she could express milk, and was subsequently charged LWOP.
  • Since this complaint was filed, new laws have only strengthened protections for pregnant and lactating employees.

People around the country cheered at the end of 2022 when the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) went into effect, and they cheered last summer when the Pregnant Workers Fairness Act (PWFA) went into effect. These laws require employers – including Federal agencies – to, among other things:

  • Provide adequate break times and a private (non-bathroom) space for employees to express and store breastmilk during the workday, and
  • Accommodate the limitations of employees related to pregnancy, childbirth, and other related medical conditions – unless doing so would cause an undue hardship on the employer’s operations.

While these laws did not become effective until recently, certain workplace protections for pregnant and lactating employees have long existed in the Federal government: the Pregnancy Discrimination Act, which went into effect in 1973, as well as Title VII of the Civil Rights Act of 1964.

A fairly recent EEOC case explored an allegation of pregnancy-related discrimination against a USPS employee, before the PUMP Act and PWFA went into effect: Krysten D. v. USPS, EEOC App. No. 2021005238 (Feb. 8, 2023).

Here’s what happened: After the birth of the complainant’s first child, management designated her an office for use as a lactation room. For privacy, management covered the window with paper and provided a small refrigerator where the complainant could store the milk during the workday. After the birth of her second child, the complainant initially used the same office to express breastmilk approximately every two hours.

So far, so good.

And then things changed. At one point during a shift, the complainant went to the lactation room and found it was locked. She requested management unlock the door, but management told her the keys were not available. After nearly three hours, the complainant was told to go home because there was nowhere else for her to express milk, and her pain had “become unbearable.” Id at 2. Because of the distance from her workplace to home (over 30 minutes) and the short amount of time remaining in her shift, the complainant stayed home after she expressed the milk. Her manager then charged her 4 hours and 9 minutes of LWOP.

A few other relevant details:

  • A year prior to this event, the complainant informed the agency of her concerns about being able to access the lactation room.
  • If the room was left unlocked, coworkers used the room for non-lactation related activities (breaks, lunch, etc.) and left the room dirty, which forced the complainant to sanitize the room every time she needed to use it.
  • On one occasion, the complainant went to the lactation room to express milk and found three individuals inside attending a training on a TV, which was plugged into the only outlet.
  • If the room was locked when not in use, the key was possessed by only one person, who worked a different shift than the complainant.
  • The complainant requested a copy of the key so she could access the room during her shift. Management refused because it was a master key. The complainant then offered to pay for a new lock on the door and management refused.

As a result of all these events, the complainant filed a sex discrimination claim (pregnancy-related condition), alleging she was not provided with a proper place for lactation.

The law on this is clear: A complainant alleging that the denial of an accommodation for a pregnancy-related condition constituted disparate treatment sex discrimination may state a prima facie case by showing that:

  1. She belongs to the protected class;
  2. She sought accommodation;
  3. The agency did not accommodate her; and
  4. That the agency did accommodate others “similar in their ability or inability to work.”

Young v. UPS, 575 U.S. 206 (2015), req. for recon. denied, EEOC Request No. 2019002792 (Jun. 25, 2019).

The agency may justify its failure to accommodate if it can show a legitimate, nondiscriminatory reason for denying accommodation. Id. at 229. According to the McDonnell-Douglas framework, the complainant must demonstrate pretext in order to prevail in her claim.

In reviewing the case, the EEOC found the agency could not provide a legitimate, nondiscriminatory reason for denying the complainant access to a clean lactation facility. Therefore, the complainant proved her claim of discrimination. As is often the case, the decision was issued long after the harm occurred.

Fortunately, cases like these don’t come up too often. However, agencies should still take note, especially since pregnant and lactating employees now have even more protections than they did just a couple of years ago. hopkins@feltg.com

Related training:

  •  Everything You Need to Know About the Pregnant Workers Fairness Act (recorded Sept. 5, 2024)
  •  EEOC Law Week

Supervisor Survival Series: When EEO Comes Calling

August 5, 2024

Observations, Guidance, Tools,
and Tips to Make Your Job Easier

Managing in the Federal workplace can be complex. In our training, we hear a lot from supervisors about their workplace fears. Near the top of that list is receiving a call from the EEO office to talk about an allegation of discrimination. Let’s look at two aspects that might come up in the process.

Support from an Agency Attorney

We’re here to tell you that it’s OK to talk to EEO. But if you’re not comfortable with that, you can request agency counsel to work with you during the counseling and investigative stages. This wasn’t always the case. The EEOC changed its position on the role of agency defense counsel working with supervisors, back in 2019. Annalee D. v. GSA, EEOC Req. No. 2019000778 (2019).

An important point EEOC made in Annalee D: “[A]gency defense counsel may assist agency management officials and witnesses in the preparation of their affidavits during the investigative stage. However, agency defense counsel may not instruct officials to make statements that are untrue or make changes to any affidavit without the affiant’s approval of such changes.” Id. at 5.

Settlement Isn’t a Bad Word

If the word “settlement” comes up in this discussions, don’t be quick to dismiss it. Settlement is not an admission of discrimination or wrongdoing. Knowing when settlement may benefit the agency, the supervisor, the complaining employee, and even co-workers is an important aspect of the EEO process. Sometimes settlement is the best way to move forward for all parties involved.

So, don’t be afraid of EEO complaints. You can do this. And we’re here to help.

Related Trainings: