The Good News: Two FLRA Members Can Still Issue Decisions

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By Ann Boehm, February 14, 2023

On Jan. 3, 2023, FLRA Chairman Ernest DuBester’s term ended. This means the FLRA currently has only two members: now-Chairman Susan Tsui Grundmann, Democrat, and Member Colleen Duffy Kiko, Republican. With two members, the FLRA has a quorum that can continue to issue decisions. But will that happen with two members from different political parties? Several things indicate the answer to that question is, “yes.”

Let’s start by looking at what has happened since Jan. 3, 2023. The FLRA has issued six decisions since that date. That indicates that these two members, from different political parties, can indeed agree and issue decisions.

There is also historical information that suggests the FLRA will continue to issue decisions, even with two members from different political parties. From May 2000 to November 2000, Democrat Don Wasserman and Republican Dale Cabaniss were the FLRA’s members. They issued 100 decisions during that time. That means they agreed 100 times.

From August 1995 to February 1996, Democrat Phyllis Segal and Republican Tony Armendariz were the FLRA’s members. They issued 67 decisions during that time. That means they agreed 67 times.

Weird, isn’t it? People from different political parties can actually agree on something.

The FLRA has been around since 1978. Throughout its existence, we have seen that Republican members can be a little more pro-agency, and Democratic members can be a little more pro-union. But there are limitations on how those tendencies impact on FLRA member decisions.

For one thing, the FLRA members are charged with interpreting the very detailed Federal Service Labor-Management Relations Statute. It says what it says.

In addition, the FLRA members have guidance from 44 years of FLRA case law interpreting that same statute. There are also 40-plus years of decisions from the U.S. Courts of Appeals and U.S. Supreme Court interpreting that statute.

So, what does this all mean? Chairman Grundmann and Member Kiko are likely to issue a lot of decisions while they serve together. If they disagree, there is no quorum, and no decision will issue. History suggests we will not see that occur often. And that’s Good News. Boehm@FELTG.com

The Good News: You are the Hidden Benefit of In-Person Training

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By Ann Boehm, January 17, 2023

In-person training all but disappeared during the pandemic. Thankfully, technology enabled us to adjust through virtual training. As in-person training has started creeping back and I’ve ventured back out on the road, I’ve paid attention to the differences in virtual and in-person training.

The materials are the same. The instructors are the same. There is one major difference, though. The greatest benefit I observe during in-person training is how the participants learn from each other. You all, the participants, are the hidden benefit of in-person training.

Let’s reflect a bit, shall we?

It’s hard to believe how things have changed since the beginning of 2020. From January to mid-March, I taught FELTG courses in Sacramento, Calif.; Washington, D.C.; Fort Collins, Colo.; Raleigh, N.C.; Natchitoches, La.; Springfield, Ill.; and Phoenix, Ariz. I taught the occasional virtual webinar, but our typical training sessions were in person. And then the pandemic hit ….

Initially, agencies postponed classes “until the pandemic ended” – you know, for a few weeks. Yeah, that didn’t happen. Weeks turned into months, months into years.

I’m sure you all, like me, remember hearing medical professionals opine that the pandemic and its associated isolation and masking requirements would continue at least until 2022. We did not think that could possibly happen. How would we survive?

Well, we did. We adapted. The world turned virtual. Workplaces changed. Training changed.

What didn’t change was the need for FELTG training. Management still had to deal with unions, poor performers, misconduct, investigations, and EEO complaints. Virtual training worked. It still does.

Virtual training has the chat function. Participants can share anecdotes. They can ask questions. They can even un-mute and address the group. In my experience, however, the virtual world does not lend itself to the kind of sharing that occurs during in-person training.

Not only do participants learn from each other – sometimes things as basic as who to contact about a performance issue or reasonable accommodation request – but I often learn from the participants. People are more comfortable sharing in person than virtually. Even the hourly breaks (which may run longer than 10 minutes during in-person training because people enjoy chatting and connecting) provide an opportunity for brainstorming, questioning, and sharing.

More and more private sector CEOs are seeking to bring people back in the workplace to enhance idea sharing and collaboration. Workers are reluctant because they like the convenience of remote work.

Remote and hybrid work are beneficial, and they are here to stay. However, when it comes to training, agencies should give serious consideration to more in-person training. It really benefits the participants. During a recent virtual training, some participants commented, “Gee, it would be nice to have this training in person.”

Don’t get me wrong. There is great value to virtual training. How lucky we are that Zoom, Teams, and WebEx exist. But in-person training allows the participants to learn not just from the instructor, but from each other.

So, there you have it. Something to think about in 2023. You are the secret benefit of in-person training. It’s an option again. And that’s Good News! Boehm@FELTG.com

 

The Good News: A Letter to Santa 2022

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By Ann Boehm, December 6, 2022

Dear Santa:

I hope you and Mrs. Claus are doing well. Has inflation hit the North Pole? Kind of crazy how it’s hit everyone this year!

Is the staff recovering from the pandemic? Any mass resignations or “quiet quitting” by the elves? I’m sure you’ve always had a great work-life balance up there, but I know it must be tough to do that given your hard and fast deadline every year!

My Christmas list this year is pretty short and in no particular order (although the last one may be the one, I want most!). I think I’ve been very good, so I hope I get my Christmas wishes!

  1. Better recognition by agencies of bad supervisors.

Santa, we here at FELTG teach a lot of classes intended to help supervisors understand how to handle problem employees. I think sometimes agencies forget that there are bad supervisors, and those bad supervisors can even create problem employees. It would be great if agencies could take a close look at their managers and supervisors to see if they are in the good column or bad column.

Signs to look for: excessive turnover in the workplace, frequent grievances or EEO complaints, and generally unhappy staff. If those signs are present, the problem may be the supervisor and not the employees.

  1. Better employee understanding of what a hostile work environment really is.

Santa, too many employees think that being unhappy at work equates to a hostile work environment. That’s just not true. Harassment is very real, sadly, but the EEOC cannot get to the legitimate cases quickly because it has to deal with lots of non-meritorious hostile work environment cases that bog down the whole system.

So how can you help, Santa? Employees need to know that a hostile work environment is unwelcome verbal or physical conduct; based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (40 and over), disability, or genetic information; that is so severe or pervasive to alter the terms and conditions of employment.

  1. Better collective bargaining negotiating by agencies to avoid agreeing to collective bargaining agreement (CBA) language that gives the union more rights than the labor statute requires.

Santa, in 1978, Congress passed the very detailed Federal Service Labor-Management Relations Statute. Bargaining unit employees and their unions have lots of rights through the statutory language. It always makes me a bit sad when I see a provision in a CBA that gives the union and employees more rights than the statute requires. For example, requiring agency investigators to tell bargaining unit employees about their Weingarten rights is not a statutory requirement, but the requirement is in far too many bargaining agreements.

  1. Better efforts by unions and agencies to sincerely work together and put the public interest above their individual interests.

Santa, sometimes unions and agencies act like toddlers in playroom:  They each hold tight to their “toys” and refuse to share. Good preschool teachers help little kids understand the value of sharing. You are pretty good with the whole “toy” thing. Maybe you can help unions and agencies figure out that it’s better to put individual interests aside and work toward a common ground that results in the best service to the public.

  1. More in-person training.

Santa, virtual training is working well, but in-person training is my favorite. As we continue to emerge from the crazy COVID world, I hope that we get back to more in-person training. I asked for this last year, and we did have more in-person training this year than in 2020 and 2021. Employees seem to be enjoying the interactions that in-person training provides.

  1. A pony.

Santa, I’m not getting any younger. I’m going to keep asking …

Merry Christmas! Happy Holidays! Happy New Year!  Ann. Boehm@FELTG.com

The Good News: Douglas Factor 5 is Your Chance to Tell the Story

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By Ann Boehm, November 15, 2022

Anyone who has taken my training or read my articles knows how much I like the Douglas factors, established by the Merit Systems Protection Board (MSPB or Board) way back in 1981: Douglas v. VA, 5 MSPB 313 (1981). The Douglas factors serve as a logical tool that enables proposing and deciding officials to figure out a defensible, reasonable penalty for an employee who engages in misconduct.

For proposing officials and deciding officials, it is necessary to understand the importance of Douglas Factor number 5: “the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon the supervisor’s confidence in the employee’s ability to perform assigned duties.”  Douglas, 5 MSPB at 332. It is your chance to tell the story!

I acknowledge that it is well-settled in Board law that the most important Douglas Factor is number 1. MSPB cases repeatedly state, “[i]n selecting a reasonable penalty, the Board must consider, first and foremost, the nature and seriousness of the misconduct and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated.” But what is often overlooked is the significant weight the Board gives to Douglas Factor 5.

Cases from the long-awaited newly-quorumed (yep, I know that is not a real word) MSPB substantiate the importance of Douglas Factor 5. In Sheiman v. Department of the Treasury, the Board agreed that the employee’s continued use of sick leave to play golf justified removal, highlighting that it was “clear from the deciding official’s testimony that his loss of trust and confidence in the appellant played a major role in his decision,” and “[t]he deciding official’s loss of trust is an aggravating factor.” MSPB No. SF-0752-15-0372-I-2, at 15 (May 24, 2022) (NP).

Similarly, in Purifoy v. DVA, the Board found removal for AWOL to be reasonable, noting “[t]he deciding official’s loss of confidence in the appellant and his concern that the appellant’s misconduct conveyed a negative message to other employees are also aggravating factors.” MSPB No. CH-0752-14-0185-M-1, at 8 (May 16, 2022) (NP). Specifically, “the deciding official testified that he did not think that the appellant ‘was going to come back and be a good employee’ and, according to the Douglas factors worksheet, which the deciding official considered in imposing the appellant’s removal, his supervisors ‘lost all confidence in his ability to perform his assigned duties’ because he was not present to perform them.” Id.

(Can we pause for a moment to appreciate that last sentence? The supervisors lost confidence in his ability to perform his duties because he was not there – he was AWOL. Hahaha. Makes sense to me.)

Supervisor confidence can also benefit an employee. In my experience, I have seen instances where an employee really messed up with some major misconduct, but the supervisor’s continued confidence in the employee resulted in a penalty less than removal.

And that is ultimately my point about Douglas Factor 5. Supervisors know their employees. They know the impact misconduct has on their office and their mission. They are the only ones who know that. The Board understands this.

Tell your story. The Board will listen. And that’s Good News! Boehm@FELTG.com

The Good News: With Weingarten, The Law Is Enough!

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By Ann Boehm, October 18, 2022

Once again, I’m writing about the Weingarten union representation right. This time I want to emphasize something that may seem overly obvious: Stick to the law!

Let’s start with a refresher about the statutory language. The Weingarten right is established in 5 U.S.C. § 7114(a)(2)(B).  To trigger the Weingarten right, there has to be an investigation by the agency. That typically means a misconduct investigation. If there’s no investigation occurring, you can pretty much stop there—no right to a union representative.

If there is an investigation, the next consideration is whether the representative of the agency is examining a bargaining unit employee, or to put it another way, asking questions. No questions, no right to representation.

If there is an investigation, and there is an examination of a bargaining unit employee by an agency representative, the employee still has to reasonably believe that disciplinary action against the employee could result from the examination in order for the employee to have a right to union representation in that meeting. No reasonable fear of disciplinary action, no right to union representation.

One big part of the statutory Weingarten right is this: The employee has to request a union representative. The agency representative has no statutory obligation to notify the employee of their right to representation (other than the agency’s an obligation to inform employees of the right annually). It’s up to the employee to seek the representation. No request for representation, no right to representation.

Here’s a problem I discovered during a recent training session. An attendee said, “Our attorneys strongly suggest we advise the employees of their Weingarten right.” Good heavens! Why in the world would that be a good idea? The statutory language makes it crystal clear that the agency representative does not have any such obligation.

Another way the agencies and unions go beyond the statutory language is by negotiating into the collective bargaining agreement an obligation on the agency to inform the employee of the Weingarten right before questioning an employee during an investigation. Good heavens! Why in the world would that be a good idea? Congress did not require it, so why agree to more than what Congress established in section 7114(a)(2)(B)?

There is really no practical reason to go beyond what the Statute says. In the worst-case scenario, if the agency proceeds with an interview without allowing the union representation, a typical unfair labor practice remedy would be to order a re-do of the interview with a union representative present (the “interview remedy”). The interview remedy may not even be necessary. A 2018 case from the FLRA indicates an interview remedy is not necessary if the Weingarten violation did not negatively impact on the outcome for the employee. U.S. Dep’t of Justice, FBP, FCI Englewood, 70 FLRA 372 (2018).

In FCI Englewood, the employee tested positive for marijuana on a random urinalysis drug test. The agency investigated his drug use, and a urinalysis retest confirmed the original results. When the agency interviewed the employee about the drug test, he requested a union representative. A union representative attended, but the agency investigator told the representative to stop asking questions. The employee then admitted to using marijuana. The agency removed the employee from his position, and the union filed a grievance challenging the removal. The arbitrator reduced the penalty to a 14-day suspension.

The union also filed an unfair labor practice charge, claiming violation of the Weingarten right based on the agency’s refusal to allow the union representative to participate actively. The General Counsel filed a ULP complaint. The Administrative Law Judge found the agency committed a ULP, and ordered an interview remedy.  Id. at 373.

The agency challenged the ALJ’s interview remedy, claiming that it would be a duplication of effort and resources, and the FLRA agreed. The FLRA explained that the interview remedy would be appropriate if allowing the union representative’s participation would reasonably suggest no discipline would have been imposed. But in this case, “there is no dispute that some type of discipline was justified” because the employee tested positive for marijuana use. The FLRA set aside the interview remedy. Id.

The law provides enough protection for the employee. Agencies, you do not need to go beyond that. And that’s Good News! Boehm@FELTG.com

The Good News: Jurisdiction Matters to FLRA, MSPB, EEOC — It Better Matter to You

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By Ann Boehm, September 12, 2022

The decision-making entities in Federal employment and labor law have distinct jurisdictional limitations. Based upon some interesting recent decisions from several of these entities, they take those limitations seriously.

The Federal Labor Relations Authority (FLRA) website explains its mission as follows: “The FLRA exercises leadership under the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7101-7135, to promote stable, constructive labor relations that contribute to a more effective and efficient government.” They are the labor law people.

The mission of the Merit Systems Protection Board (MSPB), according to its website, is to “’Protect the Merit System Principles and promote an effective Federal workforce free of Prohibited Personnel Practices.’” They explain that “MSPB carries out its statutory responsibilities and authorities primarily by adjudicating individual employee appeals and by conducting merit systems studies.” They are the performance, misconduct, and whistleblower protection people.

The MSPB’s website also explains what they do not do, such as “[h]ear and decide discrimination complaints except when allegations of discrimination are raised in appeals from agency personnel actions brought before Board. That responsibility belongs to the Equal Employment Opportunity Commission (EEOC).” They are not the discrimination people.

The jurisdictional divisions of labor should be clear, but sometimes employees, unions, and agencies file in the wrong place. The cases below demonstrate the problems with those errant filings.

Let’s start with the FLRA’s recent decision in National Federation of Federal Employees, Local 1998, 73 FLRA 111 (2022). The union filed exceptions to an arbitrator’s award that upheld the removal of a grievant for unacceptable performance.

I assume you astute FELTG readers are thinking: “They can’t ask the FLRA to review a performance-based removal, because that’s within the MSPB ‘s jurisdiction.” And that is correct.

The FLRA explained, “[u]nder § 7122(a) of the Statute, the Authority lacks jurisdiction to review exceptions to an award ‘relating to’ a matter described in § 7121(f) of the Statute” – such as removals for performance that are covered under 5 U.S.C. § 4303.  Id. at 112. “Such matters are appropriately reviewed by the Merit Systems Protection Board.” Id.

The FLRA lacked jurisdiction. It dismissed the case.

Another labor law entity, the Federal Service Impasses Panel (FSIP), also had to remind a union and agency that the MSPB handles the merit system. U.S. Army Corps of Engineers, Logistics Activity Center and IFPTE, Local 259, 2021 FISIP 019 (2022). The union and agency went to impasse over proposals discussing “Merit System Principles.” The agency proposed, “The Employer recognizes merit system principles as reflected in 5 U.S.C. § 2301(b).” The Union proposed to spell out the statutory language in 5 U.S.C. § 2301(b).

Relying on jurisdiction, the FSIP ordered the parties to withdraw their proposals. The FSIP explained that the Civil Service Reform Act created the MSPB to enforce the Merit System Principles. Thus, the FSIP explained, “[t]he interpretation of the Merit System principles is best addressed through the numerous MSPB decisions and studies.” Id. No need to include the merit system statutory reference in a collective bargaining agreement.

While the labor law entities were explaining what the MSPB does, the MSPB explained in Edwards v. DOL, 2022 MSPB 9 (2022), what it does not do. The employee claimed to be a whistleblower based upon his disclosures to supervisors about alleged race discrimination.

The MSPB said that allegations of perceived discrimination under the Civil Rights laws are not protected disclosures under the whistleblower laws. Instead, the proper forum for equal employment opportunity retaliation allegations is the Equal Employment Opportunity Commission. Id.

[Editor’s note: You can get the full picture of what the EEOC and FLRA do starting Sept. 19 as FELTG begins its EEOC Law Week and FLRA Law Week virtual training events.]

What’s the lesson to be learned from these cases? Pay attention to jurisdiction! It matters! It may be the easy way to win a case. And that’s Good News. Boehm@FELTG.com

The Good News: 100% Official Time Does Not Excuse Misconduct!

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By Ann Boehm, August 16, 2022

This administration is decidedly pro-union. The FLRA has two Democrats and one Republican on the Authority. There may be a perception that unions are untouchable in this environment, but that is just plain wrong. A recent decision from the newly constituted FLRA is illustrative. Bremerton Metal Trades Council, 73 FLRA 90 (2022).

The agency investigated a union representative, who was on 100% official time, for bullying and verbal abuse. The investigation showed she engaged in the misconduct over several years. The agency suspended her for ten days. The union grieved the suspension, leading to an arbitration hearing to determine whether the agency had jurisdiction to discipline the grievant.

The union “claimed that because the grievant’s schedule consisted of 100% official time, any Agency-imposed discipline would constitute an unfair labor practice” (emphasis added).

That is a bold argument. Even on 100% official time, the union representative is receiving a salary from the Federal government. Insulating individuals on 100% official time from any agency-imposed discipline would seemingly allow those officials to operate without accountability.

According to the arbitrator, the union rep “’engaged in “confrontational and bullying” behavior on a “regular basis’” which degraded “’the morale of those working around her’” and created an “uncomfortable working environment.’” Her behavior caused a chief steward to experience three panic attacks in one month, the last one sending him to an emergency room.

According to signed statements obtained by the agency, the grievant described her colleagues with words like “’r**ard,’ ‘stupid,’ ‘slow,’ ‘f**king p**sy,’ ‘f**king idiot,’ and ‘god d**n r**ard.’” As Dana Carvey’s Church Lady might say, “Well isn’t that special?”

Holy cow! A ten-day suspension seems light given her misconduct, but as aforementioned the union argued the agency could not discipline her at all because such discipline would interfere with internal union affairs.

The agency argued that the parties’ collective bargaining agreement enabled the agency to ensure the union office remained safe and usable, which justified the discipline of this union representative. Id. The arbitrator agreed with the agency, concluding the agreement “allowed the agency to discipline any employees who used the Union ‘office in a way not intended’ or who made the office’s ‘occupancy untenable.’”

The arbitrator noted an agency may discipline employees for conduct that is “’flagrant or otherwise outside the bounds of protected activity.’” Unsurprisingly, the arbitrator concluded the repeated and intentional bullying, with the goal of inflicting emotional distress, was for the grievant’s own benefit and not provoked. Therefore, it was flagrant and outside the bounds of protected activity.

The union filed exceptions with the FLRA, arguing the flagrant misconduct finding exceeded the arbitrator’s authority. The FLRA disagreed and denied the union’s exception. The union also argued the Arbitrator’s award was contrary to the Federal Service Labor-Management Relations Statute. Again, the FLRA disagreed and denied the union’s exception.

The agency won. Justice prevailed! Even in a pro-union administration, unions and their reps can and should be held accountable. That’s Good News! Boehm@FELTG.com

 

The Good News: New MSPB’s Recent Whistleblower Decision Makes a Lot of Sense

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By Ann Boehm, July 18, 2022

The new, fully constituted three-member MSPB (HOORAY!) sure surprised the heck out of me with its recent decision in Skarada v. Department of Veterans Affairs, 2022 MSPB 17 (2022). Skarada filed an Individual Right of Action appeal claiming whistleblower retaliation, and he lost the appeal. Although he made a protected disclosure, he did not demonstrate by good ol’ “preponderant evidence” that he suffered a “covered personnel action.”

The MSPB tends to interpret “covered personnel action” quite broadly, but not in this case. In the decision, the MSPB reminds us that the employee has the burden to show a “significant change” in duties, responsibilities, or working conditions. Id. “[O]nly agency actions that, individually or collectively, have practical and significant effects on the overall nature and quality of an employee’s working conditions, duties, or responsibilities, and are likely to have a chilling effect on whistleblowing . . . will be found to constitute a covered personnel action.” Id.

So, what, pray tell, did Skarada think was reprisal? He said his chain of command removed some of his previous duties and responsibilities. He was told to stop attending certain meetings and was excluded from the interview and hiring process for two new hires – not enough to be a significant change in his duties or responsibilities, according to the MSPB.

He also claimed his chain of command subjected him to a hostile work environment. (We see that allegation a whole heck of a lot!) The alleged offenses: “his supervisor avoided him or walked away from him on multiple occasions, often responded to his questions by stating he did not know the answer and failed to provide him adequate guidance.” Id.

In addition, he claimed his chain of command treated him in a “hostile manner.” His supervisor “yelled” at him that he needed to fix something. His supervisor “’grabbed [his] arm to pull [him] into a room’” and “yelled” at him about reporting improper patient care; and the Chief of Staff “yelled at him, accused him of ‘making up our service data,’ and told him to ‘shut up’ during a meeting. Id. Lots of “yelling,” eh?

He claimed the meeting exclusions were also part of the hostile work environment. Plus, apparently the agency “convened investigations against him.” Id.

But was any of this harassment? Not according to the MSPB. Skarada failed to show that the agency’s actions “constituted harassment to such a degree that his working conditions were significantly and practically impacted.” Id.

In my humble opinion, the way the MSPB explains these allegedly harassing working conditions is good for the Republic: “[h]is chain of command may have been unresponsive to his requests or untimely in providing guidance, but such deficiencies do not amount to harassment.” Id. (emphasis added). Also, three incidents of “yelling” were “spread out over the course of a year and, while unprofessional, were not sufficiently severe or pervasive to significantly impact the appellant’s working conditions.” Id. (emphasis added).

The investigations were only “inconvenient” and did not result in any action against Skarada. The “remaining allegations represent mere disagreements over workplace policy.” Id. (emphasis added). Even though the MSPB acknowledged that he may have had an “unpleasant and unsupportive work environment,” he did not demonstrate a “significant change in his working conditions” under the Whistleblower Protection Act.

There you have it, my friends. Being unhappy at work does not equate to a hostile work environment. I don’t recommend supervisors yell at and grab their employees, but this case shows that a hostile work environment, at least in the whistleblower context, is much more than an unpleasant work environment. And that’s Good News. Boehm@FELTG.com

Editor’s Note: Register now for the 60-minute webinar The Why, When, and How of Whistleblower Law Under the New MSPB on September 8.

The Good News: Lack of Candor is Better than Falsification, So Use It!

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By Ann Boehm, June 21, 2022

In a misconduct case involving an employee providing false information, don’t charge “falsification” even if it’s for improperly filed time cards. I know — it isn’t logical but trust me on this one. In the office, you can call it “falsification of time cards,” but don’t use that terminology if you discipline the employee, and I wouldn’t even use it in an email. Use the kinder and gentler charge that we use in government speak – “lack of candor.” Don’t believe me? A recent MSPB case makes this crystal clear.

In Sheiman v. Department of the Treasury, SF-0752-15-0372-I-2 (May 24, 2022)(NP), a GS-13 senior appraiser for the Internal Revenue Service seemed to think he was entitled to play golf during work hours, and while on sick leave too. An investigation revealed that “between August 2006 and August 2013 the appellant ‘golfed during official IRS duty hours on at least 205 days for which he claimed no annual leave on his official IRS timesheets.’” Id., slip op. at 2.

Out of those 205 days, he claimed sick leave on 30 days, was on official travel for 5 days, and either he or his vehicle were observed at various Hawaii golf courses during official duty hours on 4 days.” Id.

You gotta feel for the guy. He lived in Hawaii. Golf was calling him. Ok, maybe not. Fire him!

The agency removed him based upon two charges: “168 specifications of providing false information regarding his official time and attendance records, and 29 specifications of providing misleading information regarding his official time and attendance records.” Id. He appealed his removal to the MSPB, and the administrative judge found the agency failed to prove the “providing false information” charge because it “failed to demonstrate that the [employee] had the intent to defraud or deceive necessary to prove a falsification charge.” Id., slip op. at 3 (emphasis added).

Aargghhh. We at FELTG warn agencies about such things. Properly charging misconduct in the Federal government is something of an art. There are two universal truths to charging: An agency must prove every word of a charge by a preponderance of the evidence; and when using certain labeled charges, the agency not only has to prove every word of the charge, but also the elements of the charge by a preponderance of the evidence.

“Falsification” (which includes “lying” and “misrepresentation”) is a labeled charge. It requires proof that the employee supplied incorrect information, provided with the intent to mislead, for private material gain. Boo v. DHS, 2014 MSPB 86.

It is very hard to prove intent. Agencies frequently lose cases because they use a labeled charge that they cannot prove. There’s not a good reason to use a labeled charge, like falsification. The rest of the Sheiman case explains why.

You see, the MSPB AJ did sustain the second charge—the “providing misleading information” charge that the AJ “interpreted as akin to a lack of candor, thus requiring a lesser showing of intent than falsification.” Sheiman, SF-0752-15-0372-I-2, slip op. at 4 (emphasis added). You get that? The agency won on the “lack of candor” charge.

Sadly, this case resulted in long drawn-out litigation. The AJ mitigated the removal to a 30-day suspension. When you fail to prove a charge, the MSPB can reweigh the penalty factors. When the AJ did that, he decided removal was not reasonable.

The agency appealed to the MSPB and waited years for a quorum. The MSPB agreed with the AJ’s findings on the charges – the agency failed to prove the “falsification” charge but proved the “lack of candor” charge. However, the MSPB disagreed with the AJ’s determination on penalty and reinstated the removal. Fortunately for the agency, the deciding official “stated in his decision letter that removal was an appropriate penalty for each charge independently.” Id., slip op. at 12. Hooray for the deciding official!! According to the MSPB, “the administrative judge erred in revisiting his penalty assessment on the basis that the agency only proved one of its two charges.” Id.

Phew! The right decision emerged from this mess. But the agency never should have put itself in this disastrous place.

Learn from this case. Don’t charge “falsification.” There’s simply no need to do so when “lack of candor” works just as well (removal was justified under that charge!!), and it’s easier to prove. Easier is better! And that’s Good News. Boehm@FELTG.com

The Good News: Hybrid Doesn’t Have to Be Horrible

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By Ann Boehm, May 16, 2022

I’m predicting it now. The Merriam-Webster word of 2022 will be “hybrid.” I could be wrong. They may choose “inflation.” But I’m an employment lawyer, so I’m going with “hybrid.”

In case you don’t pay attention to the Merriam-Webster word of the year, I’ll relay that the word of 2021 was “vaccine.” In 2020, it was “pandemic.” Seems logical to me, given the theme of the past two years, that “hybrid” will win in 2022.

Why “hybrid”? It’s the post-pandemic workplace dynamic being utilized by most employers in 2022. Employers are requiring employees to come to the office X days per week, and work from home X days per week. Or month. Or whatever. It’s like trying to have your cake and eat it too. (I’ve never really understood that expression. Have your cake and eat it too? If you have cake, don’t you eat it? Anyway, I’m using it here.)

The hybrid workplace is an effort to satisfy the 75% of executives who want to come back to the office three or more days a week and appease the 63% of rank-and-file employees who want to stay at home in their jammies and comfy shoes with Fluffy on their laps. (Statistics from “1 Big Thing: Your office, forever changed,” Axios Finish Line (March 23, 2022)). It’s also an acknowledgment that “[n]ever again will most office workers spend five-day, 40-hour weeks in physical buildings, jammed with humans,” per that same article.

Just for the record, I’m a big fan of the idea that 40 hours a week in an office is history, but not everyone is. And pre-pandemic, the Federal government was one of the ultimate employers of the in-office, 40-hour-week.

Here’s the thing to keep in mind: Work is not a place, it’s what you do. You may have seen that slide if you’ve taken some of our training. It makes a lot of sense.

There’s another thing to keep in mind. Every Federal agency has a mission and obligation to the public to fulfill that mission. Where the mission is accomplished is not what matters. What matters is that it is accomplished.

I’ve read a lot of articles about the workplace and the pandemic. One of my favorite quotations explains that “expecting people to just ‘return to work’ does not acknowledge the challenges and difficulties employees endured. Employers can’t expect employees to pretend like we didn’t just live through a social catastrophe …  Employers need to understand the employees returning to the office are not the same people who left last March,” Stanford University sociologist Marianne Cooper told The Washington Post.

“America’s workers are exhausted and burned out – and some employers are taking notice.”

I think that’s freaking genius. The article is pretty daggum old in the pandemic scheme of things – June of 2021 – but the quote resonates. The other thing to keep in mind is that the quote applies to everyone in the workplace — supervisors, employees, HR specialists, counsel, etc.

Everyone is dealing with the post-pandemic world in their own way.

So, I’ve been reflecting. Pre-pandemic, agencies offered telework and flexible work schedules. I used to have a supervisor who had an alternative work schedule that meant she did not work at all every other Friday. She worked her eight nine-hour days, one eight-hour day, and had every other Friday off. It drove me crazy. Can I tell you how many times I needed something approved on her “AWS”? I would have greatly preferred that she be at home teleworking every day.

As a supervisor, I much preferred teleworking employees to AWS employees who had a full day off every other week. Remember: Work is not a place. It’s a thing you do.

There will always be supervisors who want to eyeball their employees, have them in the office. That’s why hybrid work is what 2022 is all about.

How should you handle this hybrid world? Please do me the favor of managing effectively. Figure out whether telework helped or hindered your mission. If it hindered it, you need your people to return to the office for at least part of the week. You will be in hybrid land.

The hybrid workplace will not make everyone happy. In early April, the Washington Post published an article focusing on the stressors of hybrid work. “Hybrid work for many is messy and exhausting.” One of the frustrated workers explained that going from total telework to three days in the office requires her to wake up an hour earlier, spend an hour driving, and miss out on breaks for fresh air, and hinders her ability to stretch regularly to alleviate her chronic back pain. Other issues with hybrid work include problems keeping track of belongings in two workplaces and trying to figure out when office visits coordinate with those of colleagues. Some workers are also mystified by making the effort to go into work only to find that they are in the office alone.

Despite these frustrations, the stressors of the hybrid working world are better than spending full time in the office, according to the Post article. And thus, it seems certain that hybrid is here to stay.

Expect some growing pains. Expect some frustrations. Expect employees to complain. But in the end, hybrid is better than the old school version of the in-person government workplace. Remind your employees of that. It’s not horrible. And that’s Good News. Boehm@FELTG.com