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Don’t Ignore the Energy Vampires, Zoom Zombies, or Garish Ghouls

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By Dan Gephart, October 14, 2020

This time of year is celebrated widely and wildly in the neighborhood where I once lived. Faux spider webs, mock tombstones, humongous inflatable black cats, and DIY haunted garages would overtake North Palm Beach Heights, drawing trick-or-treaters, gawkers and street drinkers from miles away.

I don’t know if anything has changed in the Heights. My guess is that it’s as wacky as ever. I’m glad I’m not there. It’s hard to get into an appropriately festive mood this Halloween. Numerous events over the last several months – acres-ravaging wildfires, multiple hurricane threats, social unrest, and a pandemic that has killed more than 200,000 Americans – have made real life a little too scary. Heck, we’ve been wearing masks (at least those of us who care about our fellow humans) for several months already.

So excuse me if I don’t have the Halloween spirit this year. You too can certainly ignore this holiday. It’s easy. Forgo the costumes. Turn off your outdoor lights. And don’t answer the door.

Unfortunately, Halloween-like behaviors are happening every day at work – and your fate will be worse than a house-egging if you ignore the Energy Vampires, Zoom Zombies, or Garish Ghouls.

Energy Vampires

The majority of employees, maybe 80 percent, are good workers. You wouldn’t call them stellar. You’d probably call them “OK” or “fair” or consider them your “no problem” employees. Then you have the 10 percent of employees who actually are stellar – your top performers.

And then you have the bottom 10 percent. That’s where the “toxic” Energy Vampires reside.

They are the ones who, either because of performance problems or misconduct, drain everything from you. They are exhausting. You take them and their issues home with you. They’re a big the reason for your stress and anxiety. They take up an inordinate amount of your time, meaning those 80 percent aren’t getting the kind of management they need to join the top 10 percent. And those 10 percent stellar employees are probably not getting the recognition they deserve.

So what do you do? You take action, and you do it quickly and effectively. If you’re not sure how to do that, well I have good news: We do. That’s what FELTG is known for. Email me and we’ll bring one of our instructors to your supervisors. To find out more, read what we cover in our UnCivil Servant, Developing & Defending Discipline, and Managing Accountability classes, as well as our other Supervisory Training offerings. All of these trainings are offered both virtually and, in person, depending on your circumstances.

Zoom Zombies

The Zoom Zombies are a relatively new creature in the workplace. As work moved remote, agencies have relied on platforms like Zoom, Teams, Webex, and Skype to meet. The Zoom Zombies don’t seem quite there during these virtual meetings. Truth is, they know where the mute button is – and they’re not afraid to use it.

Are they even there? What are they doing? Honestly, they’re probably doing other work, talking to their children or their fellow teleworking spouse/partner. What can you do here? FELTG instructor/author Dr. Anthony Marchese offers four ways to put to an end to the Zoom Zombie:

  1. Don’t structure your virtual meetings the same as your face-to-face meetings. Make them less about information dissemination and more about “doing.” Use your meetings to collaborate and brainstorm. Create the expectation that everyone will contribute and not use mute unless absolutely necessary.
  2. To promote involvement and rebuild team cohesion, devote a portion of your meeting to positive aspects of working remotely/life during a pandemic. Select a different person each week to share something new he or she has learned about themselves during the past six months. Your zombies will likely tune in to hear more.
  3. Fully embrace the technology to encourage interactivity. Add video, whiteboards, polls, and chats to make the meeting more interactive.
  4. Avoid getting into a rut. Think of different approaches for your meetings. First, what is the reason for having the meeting in the first place? Next, consider: Am I defaulting to a “meeting” because that’s what I’ve done before? If I only have 60 minutes with my team this week, what can we do to best use that time? What does my team really need from me? From one another?

To hear more from Dr. Marchese, join him for the half-day virtual training event The Performance Equation: Providing Feedback That Makes a Difference on Wednesday, October 28 starting at 12:30 pm ET.

Garish Ghouls

Any time I read recent EEO case law, I feel like I’m watching a particularly cringe-worthy episode of Mad Men. People don’t really still do these things, do they? Yes, they do. Want a recent example? Read Deb Hopkins’ article last month about a now-former (thankfully) Fed named Dave.

There is way too much harassment and bullying going on in the federal workplace these days. Yes, some EEO claims are frivolous, over-reactions to being held accountable. But a lot of harassment that is going unreported. The #MeToo movement has brought light to the issue, yet much, sadly, remains hidden away due to embarrassment or fear.

Ghouls can thrive whether in the office or at home. In fact, the home environment makes some harassers more comfortable to take their actions. Regardless of where the workplace harassment takes, there is one important thing you need to know: You CANNOT wait to discipline the employee.

If you’re aware of inappropriate sexual conduct, you must take action. Right away. It doesn’t matter if a complaint hasn’t been filed. The other thing you’ll notice from reading EEO decisions is that they take a long time to get resolved. If you wait for that process to unwind, the agency harasser will commit more offensive actions. It’s your responsibility to protect your employee from harm and protect your agency from liability.

And here’s how you do that:

  • Take all harassment allegations seriously.
  • Stop the harassment, separating the alleged harasser from the situation.
  • Promptly investigate and take quick action.

Harassment Investigations will be covered on the second day of Workplace Investigations Week Nov. 16-20. Register here.

If you’re looking for something shorter, join instructor Katherine Atkinson for the 60-minute webinar Preventing and Correcting Hostile Environment Harassment next week (October 20 starting at 1 pm ET). Gephart@FELTG.com

And Now a Word With … Dr. Anthony Marchese, on Performance

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By Dan Gephart, October 6, 2020

Gourds, pumpkin spice, a slight nip in the air, falling leaves. It’s all a reminder for many supervisors that it’s time to start working on those end-of-the-year performance reviews. Many federal employees will be getting feedback on their performance for the first time since their last review. And that, FELTG Nation, is inexcusable.

Whether it’s anxiety, frustration, or confusion, you cannot afford to avoid regular, honest performance-related discussions with your employees any longer. Providing feedback effectively is a skill — one that every supervisor can and should develop.

FELTG Instructor Dr. Anthony MarcheseFELTG Instructor Anthony Marchese will present The Performance Equation: Providing Feedback That Makes a Difference on October 28 from 12:30 – 4 pm ET. I caught up with Tony, who besides teaching for FELTG is a consultant, author and former academic dean, to talk about performance feedback.

DG: Why is feedback so important?

AM: Feedback is essential for growth. It is embedded in some of our earliest experiences. It helps provide a map of meaning to help direc

t us toward desirable behavior. In other words, it helps us to understand where we are in relationship to where we could or should be. It helps reinforce positive behavior and offers insights into where we may need to adjust behavior that is incongruous with expectations.

DG: Does it always have to be formal?

AM: Definitely not! However, before we discuss delivery methods, we need to ensure that it is happening. In a recent study, Gallup reported that 50 percent of surveyed employees (from a variety of sectors) did not know what their managers expected of them on a daily basis. Forty-seven percent of respondents indicated that they receive feedback only a few times a year or less. If an employee consistently possesses that level of uncertainty further reinforced by an absence of performance conversations, it is unlikely that they will receive a positive performance review. It is a near impossibility that they will exceed expectations. Consider how the current pandemic may have further exacerbated ambiguity, uncertainty, and the frequency of performance conversations. We must do better.

DG: Speaking of the pandemic, a majority of federal employees are working from home now. What are some pitfalls for supervisors to avoid when providing feedback remotely?

AM: Try to avoid negative surprises. Let your employee know in advance what you’d like to discuss. Provide specific, self-introspective questions to help them prepare for the conversation by carefully considering their performance and be ready to discuss what to continue, discontinue, and how to do it. Also:

  • Try to avoid using a virtual feedback conversation to test out a new, unfamiliar technology. Video is always better. Make sure that you and your employee know how to use it. Remember, nonverbal cues are incredibly important and can be easily
  • missed when not meeting face-to-face or using video. Let them see you. Be sure to see them.
  • Try to make the feedback session an active, brainstorming experience. Rather than spending the time “telling,” consider a structure that encourages equal participation, reflection, and problem-solving. This energy helps mitigate the Zoom fatigue plaguing so many right now and also positions the supervisor as a collaborative partner in helping your employee be at their best.

DG: How do you provide feedback to essential workers who are so busy they don’t have time for a feedback session?

AM: If a supervisor is too busy to provide feedback, he or she is too busy to be a supervisor.

More than ever, it is important that each employee feels connected to her or his supervisor. In a world filled with uncertainty, anxiety, and exhaustion, supervisors who choose not to take the time to provide feedback perpetuate an already difficult situation.

Feedback can come in many forms. It is not limited to a 60-minute, sit-down session in an office. It can occur during a weekly one-on-one. It can occur via e-mail following a deliverable. It can be offered by colleagues (a 360 perspective is important). Right now is a great time to rethink how we provide feedback. For example, rather than a supervisor leading a session during which they “tell” their employee how they did, they may want to consider positioning the meeting as an inquiry opportunity. This helps promote individual ownership for performance. Supervisors should be curious. Ask questions of their employees like: How did you think the planning session went? What worked well? What would you change? Here is what I observed. What can we do together next time to ensure whatever a successful outcome would be?

Since most work-related communication has been interrupted/impacted by the pandemic, supervisors may want to reconsider how they leverage their one-on-ones, team meetings, and emails.

DG: What is the one thing every supervisor could do immediately to improve feedback?

AM: The most important thing is simply to do it. Don’t contribute to the 50 percent of employees who are unclear about what they should be doing. Here are a few other ideas to consider:

  • Conduct a self-assessment. Ask yourself: Do my employees know what I expect of them? How am I so sure?
  • Conduct a team assessment: Ask your employees (individually): Do you feel like you have what you need from me to perform your job well? What can I do/provide to ensure that you have what you need? What should I do more of/less of?
  • Performance feedback needs to consider both the “what” and the “how”. Many supervisors assume that once they provide feedback (especially constructive), their employees will know precisely how to change. This is often a false assumption. When providing feedback, discuss with your employee a strategy (with identified goals, resources, timelines, and accountability) to help support their efforts.

If you’d like to bring Dr. Marchese to your agency for training on feedback, communication or any leadership-related topic, email Gephart@FELTG.com.

Harassment Investigation Challenge: Who is Telling the Truth?

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By Dan Gephart, September 29, 2020

If you’re a regular reader of Barbara Haga’s articles in our monthly newsletter (and if you’re not, what’s wrong with you?), you may have noticed a common thread weaved within her last two articles.

Sometimes, federal employees lie.

Earlier this month, Barbara told the tale of an FAA civil engineer who was asked point blank if she used her work computer “for unofficial personal reasons while on duty for any reason.” Her reply was a simple “no.” Unfortunately for the engineer, the agency had already compiled an Internet history of the computer in question and found more than 33,968 nonwork-related transactions on sites, such as Amazon, eBay, and Etsy. Further investigation revealed that the employee was actually running her Etsy business from her work computer.

A month earlier, Barbara wrote about an employee who denied sending inappropriate text messages, many of a racist nature, on her phone by replying “I do not admit to the validity of these messages.”

In both of these cases, the agency had one thing going for it – a lot of evidence.

But when you’re doing investigation of hostile work environment harassment, sometimes there isn’t much evidence, so you end up with the classic he said/she said situation. How do you determine credibility, especially when there is so much raw emotion involved? And how do you do it during a pandemic, when the interviews are being done remotely?

Next week, October 6-8, 2020, FELTG will present the virtual training Conducting Effective Harassment Investigations. On the third and final day of the seminar, FELTG instructor Meghan Droste will cover everything from interviews to writing the report, including a module on determining credibility.

First off, the EEOC has recognized that being able to see a witness is crucial to gauging credibility, so be sure that you have a reliable webcast platform like Zoom or Skype. Although you’re no longer in the same room, you should still be able to read demeanor and body language.

Here’s what you do: Start with easy questions. Monitor how the employee moves, including facial expressions. This sets a baseline for how the interviewee will react when telling the truth. Then start to toss in tougher questions. Look for a difference in reactions. Has the employee’s pitch or speech rate changed? What about eye contact? Are they fidgeting at all? Are their answers limiting details or are they adding more? Are they answering your questions with the same amount of certainty?

You can learn a lot from body language. Or, you may learn very little, because body language is a highly-contested area of credibility findings. Therefore, you can’t rely on just body language to make a determination. There are several other ways that truth, or more accurately, lies can be revealed.

Consider the following:

  • Detail. How specific was the witness’s testimony? Did the witness deny the allegations in detail or just generally? Did anyone leave out important or obvious information during the interview?
  • Corroboration/Conflict. Are the conflicts over minor or significant issues? Does the witness’s testimony contradict other testimony? Was the witness’s story consistent through the testimony or did it change on a second telling?
  • Plausibility. Which story make the most sense? Are the details in the testimony realistic?
  • Motive. Does the employee have a motive to lie about, exaggerate, or deny the incident? Do any of the witnesses have special loyalty to or a grudge against anyone involved in the incident?
  • Past record. Have there been any prior incidents between the complaining and accused employee? Does the accused have a history of this type of misconduct?
  • Demeanor. Was anybody’s reaction unusual, as compared to their typical demeanor?

Again, you can’t rely on any one of these factors when determining credibility. But taken as a whole, you should be able to develop some sense of who is telling the truth. Gephart@FELTG.com

You’re Communicating a Message: Can Your Employees Understand?

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By Dan Gephart, September 16, 2020

Let Your Light Shine

As the pandemic reached its fourth month, a friend from Ohio sent us a package — sticky letters spelling out the aforementioned message that would beam hope and inspiration, once affixed to our fridge.

Even before the pandemic, my wife and I worked from home and the refrigerator was the place in our tiny two-story house where we regularly crossed paths. As the pandemic continued to wage war with my anxiety, the fridge visits have become more frequent, and the aspirational message has provided affirmation for several weeks since.

Oh, who am I kidding? Let Your Light Shine lasted all of three days. Tops. Yeah, yeah, yeah, it was a moving message and all that. My wife and I are creative types — two nerds who have spent our working lives writing and editing and a good portion of our free time competing ferociously against each other in Scrabble. Each trip to the fridge meant another chance to let our scrambled lights shine.

Heighten Sully Riot

So it has become a regular competition between us to rearrange the letters into a new message. The goofier, the better. Our only rule: They have to be real words.  Our anagramming competition was on my mind as I listened to FELTG Instructor Anthony Marchese, Ph.D., teach several communication-related virtual training classes and webinars over the past few weeks. For many of you, it’s that time of year when you’re providing performance reviews for your charges. Dr. Marchese’s training on performance feedback, communication, and leading virtually is always timely, but particularly so in the late Summer/early Fall. If you missed out on Dr. Marchese’s recent classes, you can register now for just-announced virtual training The Performance Equation: Providing Feedback That Makes a Difference, which will be held on Wednesday, Oct. 28 from 12:30-4 pm ET. (Dr. Marchese also teaches many of our Leadership and Supervisory courses, all of which can be taught virtually.)

Managers and advisors often want to make sure that everyone gets the same message. And that’s important. But not everybody responds to the same communication style. Someone may hear Let Your Light Shine, while another employee will hear There Lying Loutish.

Dr. Marchese says that a “one-size-fits-all communication minimizes the likelihood of meaningful engagement and incites unnecessary conflict.” He suggests creating your own “rules for engagement” by exploring your employees’ behavioral workstyles. This is particularly important when discussing feedback.

There are typically four languages spoken at work – Analysis, Achievement, Amicable and Artistic. Understanding how your employees individually fit into these groupings will help you to determine the best ways to individually communicate to each. Some may be energized by a detailed plan. Others may find such plans alienating. Spontaneity and enthusiasm will motivate some but alienate others.

Oy Let Lies Turn High

In his recent webinar Leading Virtually, Dr. Marchese defined these different languages and provided clear guidance for how to identify an employee’s language and how to best communicate to that individual. Do you need to know your and your employees’ Work Languages in order to be successful at communicating in the workplace? No, you don’t. But it is a tool. And it’s an effective tool. But there are others. Nothing can truly replace getting to know your employees’ individual styles and knowing how best to convey important information.

Hero Tilly He Guns It

As a manager, you want to create an experience that allows each member to offer his/her/their best, and then meld their contributions into something that no individual could have done alone. The performance review is that time of the year where you can take stock with each employee about his/her/their contributions and set a path forward for the next year.

But the performance review is not a stand-alone event. It should serve as a culmination of a year’s worth of work and feedback. The last thing you want to see from an employee in a performance review is shock. If that happens, then you have failed. Either you’ve failed to provide feedback throughout the year, or quite possibly, you thought you were providing feedback, but you didn’t communicate it in a way that your employee understood. To repeat those illustrious and stirring words I recently saw spread out across a stainless-steel backdrop: Heighten Your Still. Gephart@FELTG.com

Yellow Donuts, Unnecessary Shopping Trips, FELTG, OPM and Accountability

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By Dan Gephart, August 19, 2020

Please don’t tell my wife this, but she’s almost always right when we debate the best way to get something done. Here’s an example: I realize we’re out of bananas, just as I’m preparing a smoothie. So as I grab my car keys, I holler: “I’m running to the supermarket to get bananas.” She replies: “Don’t we need lightbulbs for the kitchen, too, and batteries for the remote? And while you’re out, what about dropping off the bag of food at …”

I don’t hear that last part because I’m out the door. I have one mission: Getting bananas. I want a smoothie. Why worry about that other stuff? But later that night when I go to turn on the kitchen lights and the last remaining bulb remains dark, I get the look. I storm out of the kitchen and turn on the TV. Click. Click. Nothing. Remote needs new batteries. And then I hear: “You know, you could’ve saved yourself time while you were out …”

She’s right and she understands efficiency. Take the right steps now to make your life easier in the long run. Why make three separate trips to three stores in the same vicinity, when you can do it all in one trip?

We preach a lot about efficiency here at FELTG. I mean A LOT. It’s what we do. But instead of unnecessary car trips, we help rid supervisors of unnecessary actions when it comes to handling performance and conduct issues.

Let’s face it: Life as a federal supervisor, particularly during a pandemic, is quite difficult. Why make it harder?

My favorite slide that you’ll find in many of FELTG’s materials is what we endearingly refer to as the “dreaded yellow donut.”

Read about the concept of the yellow donut here. Basically, the donut is a reminder to take the minimum steps in performance and conduct actions. The more unnecessary steps you take, the harder it gets, the longer it takes – and the more likely you are to make a mistake.

As we found out in my interview with Dennis Dean Kirk last week, OPM’s Employee Services Team wants to make sure federal supervisors are appropriately “equipped to address performance and conduct issues.” (Sidenote: Oh, how I wish I was interviewing Mr. Kirk about his experiences as a new MSPB member.)

As baseball announcer Mel Allen used to say: How about that? It’s not just a FELTG thing. It’s an OPM thing, too. So go out and grab a donut (and anything else you need while you’re out), then register for the FELTG flagship program UnCivil Servant: Holding Employees Accountable for Performance and Conduct, which will be held virtually on September 9-10 from 12:30 pm – 4 pm ET.

Or if you’re an HR Director, team leader. or attorney advisor, and you want to reach a larger group of supervisors, bring UnCivil Servant: Holding Employees Accountable for Performance and Conduct to your office virtually or onsite. Don’t do it because it’s a FELTG thing, or an OPM thing. Do it because it’s the right thing. Gephart@FELTG.com

And Now a Word With … Dennis Dean Kirk

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By Dan Gephart, FELTG Training Director, August 11, 2020

I really had hoped and expected that when we conducted an interview with Dennis Dean Kirk, it would be to discuss his new role as Chairman of the Merit Systems Protection Board. As the FELTG Nation knows, President Trump nominated Mr. Kirk more than two years ago for one of the three open spots on the Board. Those three spots remain open because the Senate has not scheduled a vote, and the likelihood of us getting an actual Board anytime soon is, to quote the person who made the nomination: #Sad!

But Mr. Kirk isn’t just sitting around waiting to hear from the Senate. Since being named the Office of Personnel Management’s Associate Director of Employee Services earlier this year, Mr. Kirk has dived deep into his role of developing and administering policy on issues as wide ranging as pay, labor relations, performance management, and more. And now Mr. Kirk and his Employee Services team are focused on implementing President Trump’s executive orders and ensuring that all federal supervisors are appropriately “equipped to address performance and conduct issues.”

As you can imagine, the FELTG team is very interested in Mr. Kirk’s current work. We’ve been providing specific useful guidance on the aforementioned EOs in training since the day after they were signed. And equipping supervisors to address performance and conduct, well that’s kind of our thing. So we’re thrilled to see OPM prioritizing supervisory training and we thought it important that you knew what was going on. So we reached out to OPM and sent our questions to Mr. Kirk. What follows is that Q&A.

DG: Could you tell us briefly about the team you have in place at Employee Services and the priorities you have been working on?

DDK: Our team is a mix of highly qualified and seasoned civil servants and senior political appointees who are experts in their fields. Appointees help lead the department and ensure that our priorities are aligned with the Trump Administration’s policy objectives.

Our top priority is assisting agencies in implementing President Trump’s three workforce Executive Orders on employee removals, collective bargaining, and official time. These Executive Orders have tasked agencies to renegotiate collective bargaining agreements to bring them in line with the provisions of the Executive Orders, understand and record the amount of official time that is being billed to the taxpayers within their agency, and rein in extra-statutory impediments to maintaining accountability within their organizations. As a result of the data collected from these efforts, OPM is creating reports on the use of official time, collecting and publishing collective bargaining agreements, developing model collecting bargaining agreement language with the help of the Labor Relations Group, and creating training materials to help managers understand how and when to take adverse actions.

Over the past four decades, the cost of higher education has risen dramatically. In 1978, the average expense of one academic year at a four-year in-state public college was $8,250 in inflation-adjusted U.S. dollars. Today, one year at the same college would cost $21,370 on average. This trend makes the widespread reliance on educational requirements by employers an ever-steeper hurdle to gainful employment for many Americans. For example, among U.S. workers over the age of 25, 26 percent of blacks – as compared to 40 percent of whites – have at least a bachelor’s degree.

President Trump believes that regardless of whether an individual had the ability to pay for a college education, they should have an opportunity to demonstrate whether they have the capacity to perform the duties of a job. The Office of Personnel Management is also implementing the President’s Executive Order on Modernizing and Reforming the Assessment and Hiring of Federal Job Candidates issued this summer to open up the Federal hiring process to job seekers with a much wider set of experiences. This Executive Order requires that agencies develop and offer competency-based assessments – as distinct from self-assessments – for every job advertised in the competitive service. It also specifies that, unless a certain level of education is required for licensure in a certain field, educational attainment cannot be used to bar someone from taking an assessment.

We are setting up listening sessions between private businesses – both large and small – and Acting Director Michael Rigas and our team at OPM to learn from the innovative ways these companies are identifying talent using assessments rather than relying on college degrees. OPM is also supporting the Federal HR community to help them meet the demands of the Executive Order and reviewing our guidelines and policies to assure that education is not used as a barrier to entry.

DG: OPM shared an employee engagement toolkit with agencies earlier this year. What was the goal of that toolkit?

DDK: In October of 2018, OPM issued government-wide guidance and reporting requirements on two President’s Management Agenda milestones. To support agencies with achieving these milestones, OPM developed the employee engagement toolkit for supervisors.The two milestones were the “Workforce of the 21st Century” Cross-Agency Priority Goal, Subgoal 1:”

  1. All major components/bureaus will identify its bottom 20% on the 2018 Federal Employee Viewpoint Survey (FEVS) Employee Engagement Index (EEI) and target a 20% improvement in those units by the end of 2020.
  2. All agencies will have clear standard operating procedures for disseminating the Federal Employee Viewpoint Survey (FEVS) data to all organizational levels

DG: Have you received any feedback on the toolkit?

DDK: OPM has received positive comments from agencies expressing the value of the toolkit. Several agencies have informed OPM they have taken steps to deploy the toolkit within their agency, and they have offered webinars to highlight the toolkit and how to interpret and use FEVS results to improve employee engagement.

DG: While there has been improvement, a majority of employees still responded negatively to the statement on OPM’s Federal Employee Viewpoint Survey: “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve.” Why do you think this is a perennial issue and what can be done to fix it?

DDK: This is why we are making the implementation of the President’s three Executive Orders on accountability and labor relations a top priority. When President Donald Trump issued three executive orders that made it easier to fire poorly performing government employees, the backlash from public-sector unions was fierce. Union leaders did not like it—one called it an “assault on federal employees.” But a poll following the signature of these Executive Orders found that the majority of government workers— 51 percent —support the Administration’s efforts.

Moreover, only 24 percent of Federal employees oppose the recent executive orders, and another quarter are unsure. Some federal employees no doubt take advantage of their insulation from accountability, but most civil servants are hard-working and dedicated — a fact attested to by the 70 percent customer satisfaction rate among those who receive some federal service. The diligent federal workers must pick up the slack for those who do not do their share, only to sometimes be denied opportunities for advancement by the dead weight above them. And, as anyone who has worked in an office environment knows, unmotivated and unruly co-workers can take a heavy toll on morale. So, although a few bad apples may prefer to keep the status quo, it is not surprising most federal employees welcome these provisions of the President’s Executive Orders.

DG: What do you see as the main reason some training is not effective? 

DDK: Over the years and through extensive research, OPM has learned the value of shifting from traditional classroom-based learning to experiential and social learning activities. With experiential and social learning activities, approximately 70 percent of learning takes place on-the-job; 20 percent of learning results from meaningful relationships and coaching; and 10 percent of learning occurs through formal classroom training. OPM’s research also suggests that this approach to employee training is more situated in the context of an employee’s work, providing cost savings opportunities to build and demonstrate the competencies needed for success.

DG: What is the skill you’d most like to see supervisors improve upon over the next year?

DDK: OPM supports Federal agencies to ensure all supervisors develop critical leadership competencies within the first year of appointment and are appropriately trained on performance management, as well as addressing performance and conduct issues.

Additionally, OPM is committed to providing supervisors with best practices, guidance, training, and forums with a focus on employee experience, performance, and continual learning. We also emphasize the importance of succession planning in support of talent management from entry to leadership level.

DG: What is the most critical skill you’d like to see HR improve upon over the next year?

DDK: OPM encourages HR professionals to shift their focus from the traditional functional role to more of a strategic partner within their organization. The Federal Government continually faces unique challenges to meet its mission to effectively serve the American people. HR professionals can support Federal leaders to improve the agility of the workforce, adapt to change, and develop workforce solutions to overcome these challenges.

Editor’s note: FELTG’s flagship course UnCivil Servant: Holding Employees Accountable for Performance and Conduct, is just one of our many training programs that empower federal supervisors to confidently and effectively take legally defensible actions to address poor performance and misconduct, and comply with OPM’s 5 CFR 412.202(b) requirements. We can provide this course specifically for your agency. And we’ll be teaching UnCivil Servant: Holding Employees Accountable for Performance and Conduct virtually as an open enrollment over two half-days on September 9-10. Gephart@FELTG.com

10 Reasons Why FELTG Is the Best Option for Your Summer Conference Plans

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By Dan Gephart, July 15, 2020

If your favorite summer conference is not being held on-site, and you still have training funds, we hope you’ll register for Federal Workplace 2020: Accountability, Challenges, and Trends During the COVID-19 Pandemic. Here are 10 reasons why:

  1. It’s hard to believe, but some virtual conferences require attendees to register for the full event even if you’re only planning on attending a few sessions. This doesn’t seem like a wise way to spend your agency’s money.  Federal Workplace 2020: Accountability, Challenges, and Trends During the COVID-19 Pandemicallows you to register and pay for only the sessions you want to attend.
  2. And, speaking of sessions, we have some timely sessions from which to choose. All are updated with the latest information and guidance, especially as they apply to the current pandemic. There are sessions on performance and conduct challenges during a pandemic, EEO trends in the COVID-19 world, the latest on sexual orientation and transgender discrimination, and much more.
  3. We also have sessions on the perennially challenging topics like mixed cases, reasonable accommodations, the intersection of the ADA and FMLA, performance feedback, and much more.
  4. If you’re going to a virtual training, you’d expect the event to be live, right? Beware: Some virtual training conferences are presenting recorded sessions. That idea doesn’t fly with us here at FELTG Headquarters. All of our sessions will be presented live, which means you’ll have opportunities to ask questions of the instructors, and get immediate answers.
  5. Speaking of instructors, your favorite FELTG presenters, such as FELTG President Deborah Hopkins, Barbara Haga, Katherine Atkinson, Dwight Lewis, Bob Woods, and Ann Boehm (just to name a few) will be a part of the event.
  6. We make it easy for EEO counselors and investigators to get their 8 hours of annual refresher credits.
  7. No, we didn’t forget about you attorneys out there. This event offers many chances to earn CLE credits, including two hours of Ethics.
  8. Federal Workplace 2020: Accountability, Challenges, and Trends During the COVID-19 Pandemichas something for everyone, whether you’re a supervisor, HR professional, EEO practitioner, union representative, or attorney.
  9. This isn’t our first rodeo. Since we launched the FELTG Virtual Training Institute earlier this year, we’ve produced several multi-day virtual training events.
  10. If for some reason you can’t attend this session, we have plenty of other upcoming, more specific events before the end of the fiscal year, including EEOC Law Week and MSPB Law Week. Check out the FELTG Virtual Training Institute for more details.

Avoid Thoughtless Approach to Essential Function Determination

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By Dan Gephart, July 15, 2020

Essential can be a loaded word. Any discussion on whether something is essential – whether it’s workers, food, or art – will likely not lead to consensus. Would you have considered GrubHub drivers “essential” workers at this time last year? Probably not. Despite the authoritative nature of the word itself, essential is subjective in most cases.

But when it comes to reasonable accommodation for a disability and an employee’s job functions, essential is not a word to be played with loosely.

In order to be a “qualified individual with a disability,” an employee must meet the basic job qualifications and be able to perform the essential functions of the job with or without reasonable accommodation. When you actually identify the essential functions of a job, you might find that they’re not always what you may think they are. As you go through this process, it’s important that you analyze each function and avoid rash decisions.

Consider the following:

The time spent on the function may not be as important as the consequences. Here’s an example: A firefighter may not regularly have to carry an unconscious adult out of a burning building. However, the consequence of failing to require the firefighter to be able to perform this function would be serious.

Outcomes are more important than how the function is usually performed. Essential functions are the fundamental duties of a job — the outcomes that must be achieved by someone in that position, not the means by which those outcomes are achieved. There are plenty of EEOC cases where agencies felt an employee was not qualified because of a lifting restriction, only to find out there are a lot of ways to move items. In Small v. U.S. Postal Serv., EEOC Appeal No. 0720100031 (Apr. 5, 2012), a push cart was just as effective as a satchel for a letter carrier with a lifting restriction.

The written job description isn’t the be-all and end-all. Just because a function is in the job description doesn’t necessarily mean it’s essential. Sometimes the position description includes functions the employee never actually performs, while functions that are essential have become part of the job over time. Focus on whether you actually require the employee in the position to perform the functions that you claim are essential. You’d be surprised to find out how many functions are listed in the job description that the employee has never actually done and will never need to do. The written job description can be evidence of an essential function – but it’s not the be all-end all.

And here is the best example, why you shouldn’t rush to make a decision.

Attendance is not an essential function. In Cottrell v. USPS, EEOC Appeal No. 07A00004 (2001), an employee with ADD couldn’t be in the workplace certain days of the week due to his disability. However, there was a reasonable accommodation that allowed the employee to complete essential functions.

In many jobs, of course, attendance seems to be essential. But in the federal government, poor attendance is looked at as a potential undue hardship, not as an essential function.

Here are some other considerations, per 29 CFR § 1630.2(n)(2), as you determine the essential functions of a position:

  • The reason the job exists is to perform that function.
  • A limited number of employees available to perform the function/
  • The function is highly specialized such that incumbent is hired based on expertise or ability to perform that function.

If you’re looking for training on reasonable accommodation, FELTG has plenty of options. Reasonable Accommodation in 75 Minutes, which will be presented by former EEOC Dallas Region Chief Judge Dwight Lewis, will be one of 14 sessions we’re offering during our conference-like event Federal Workplace 2020: Accountability, Challenges, and Trends during the COVID-19 Pandemic.

Also, you can register now for the Reasonable Accommodation in the Federal Workplace webinar series, which begins on July 30. You can register for any or all of the five 60-minute webinar events.

The bottom line: Take requests for reasonable accommodation seriously. There may be times when you’ll find an employee is not qualified for the position with or without a reasonable accommodation. But if you take an open-minded, creative and analytic approach to reasonable accommodation requests, you’ll find that in almost all cases you’ll find an effective solution. Gephart@FELTG.com

Consider the Impact of Stress in Workplace Reopening Plans

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By Dan Gephart, June 17, 2020

A glimpse at the Internet during the coronavirus pandemic reveals people cutting their own hair, making their own bread, showing off their TikTok dance moves, and building elaborate Rube Goldberg machines.

Fun, fun, fun.

However, dig a little deeper and you’ll find that much of our nation, if not the world, is besieged by stress. Reports of police brutality, rising unemployment, a volatile stock market, and the continuing pandemic are pushing many to the edge. One professor told Time Magazine that we’re suffering from a “national anxiety.” This is not a flippant remark. It’s the truth, and it’s frightening.

We all know the friend, colleague, or family member who proudly claims: “I perform best under pressure.” Well, that’s great. Go take a seat over there next to Michael Jordan and have fun comparing your stress-filled accomplishments. There are many people, including plenty currently employed by the Federal government, who must routinely perform their jobs under highly stressful situations. And they do it every day. Quietly, without fanfare. I commend them.

However, if you’re not required to take on inordinate amounts of stress, you shouldn’t. Stress is bad for the body. It can cause minor ailments like stomachaches, headaches, heartburn, tension, and it can lead to serious health issues like depression, heart attacks, and strokes. Stress weakens immune systems and makes the body more vulnerable to attacks, such as the one posed by COVID-19. Put simply: If you’re stressing out about the coronavirus, you’re making yourself more at risk for getting it.

Now, think about the amount of stress this pandemic has caused and then try to imagine what that means to those individuals already suffering from anxiety disorders.

Last month, we discussed three issues to consider as you prepare to return employees to the physical workspace – ADA, age discrimination, communication. The previous month, I wrote about the rise in pandemic-related discrimination. This month, I turn the attention to stress and anxiety-related disorders that will make the already difficult transition back to the workplace an even more taxing endeavor for some employees.

Most people get depressed at some time in their lives, especially if they have suffered a loss. But there are others who have clinical depression, which is a much more serious condition that ranges from mild temporary episodes of sadness to suicidal ideation or behaviors.

It’s the same with anxiety. Everyone gets a little anxious at times, such as when our favorite team is just a few yards away from the endzone with a playoff spot on the line, or when we have to make a presentation to our superiors. That anxiety is fleeting. That’s not the case for those with anxiety disorders. An anxiety disorder is a psychological disorder caused by excessive fear or anxiety. It can be severely debilitating, and it affects up to 30 percent of the adult population at some point during their lives.

Common anxiety disorders include panic disorder, phobias, social anxiety, posttraumatic stress disorder, acute stress disorder, separation anxiety disorder, and obsessive compulsive disorder.

Missions will not be accomplished if incapacitating stress runs rampant upon the re-opening of the workplace.

What can you do to address this challenge?

First step: Take care of yourself,  even if you don’t have an anxiety disorder. Shana Palmieri, a licensed clinical social worker, senior vice president of Behavioral Health and co-founder of Xferall, and FELTG Instructor, shared several tips for coping with pandemic-related stress in this newsletter a couple of months ago. Read that article and take it seriously. Personally, I’ve significantly reduced my social media time and rely on only a few reputable sources for pandemic-related news. That has made a huge difference. As Shana said: “We all must do our part to stop the spread of COVID-19 and engage in self-care to keep ourselves and our communities physically and emotionally healthy during these challenging times.”

Next step: Recognize that there is a mental health crisis in America and the COVID-19 pandemic is having a serious negative impact on that crisis. A vaccine, herd immunity, or a flattened curve may signal a close end to the pandemic, but the nation’s mental health crisis will still be here.

With employees’ return to work comes your responsibility to accommodate. Shana and FELTG President Deborah Hopkins will discuss accommodations for all behavioral health issues on the first day of Emerging Issues Week, which runs July 20-24. Some of the simple accommodations for stress are:

  • Allow for longer or more frequent breaks.
  • Provide additional time to learn new task or skills.
  • Allow flexible leave for counseling/ therapy.
  • Consider more frequent meetings with supervisor.
  • Provide stress-reduction programs through Human Resources or EAP services.

Lastly, communicate. When sharing plans for workplace reopening, provide facts. The return to work should follow a well-crafted plan with few to no surprises. And be honest. There are still nearly 1,000 deaths a day due to COVID-19, and the number of cases continues to rise. Ignoring the reality of the moment will only exacerbate stress.

Managing this mental health crisis in the workplace will be one of several topics discussed during the encore presentation of Federal Workplace Challenges in a COVID-19 World: Returning to Work During a Pandemic to be held on June 29. Shana and FELTG Instructor Ann Boehm will also cover telework,  leave and flexible work schedules, medical testing, employees who blow the whistle about COVID-19 related issues, reasonable accommodation, and everything else you’ll need to consider as you attempt to return the workplace to some semblance of normalcy. Gephart@FELTG.com

And Now a Word With … Chai Feldblum

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By Dan Gephart, June 2, 2020

I’ve attended the EEOC’s EXCEL Conference for several years as a member of the press, which included a pre-arranged sit-down interview with one of the EEOC commissioners. Sometimes I interviewed the Chair, but usually I interviewed whoever was newest to the commission. (Guess they drew the short straw.)

The interviews didn’t usually delve too deeply into federal sector EEO issues, which is understandable. Many of the commissioners came from a non-Federal background and they were still learning the ropes. Most of their attention was on the private sector.

Chai Feldblum (pictured above to the right), however, showed no reticence in talking about nitty-gritty federal sector issues. Despite being on the job for just a few months, she was not only enthusiastic, she was informed, curious, and engaging – the kind of traits that made her a popular professor at Georgetown University’s Law School. And Feldblum was very approachable, which is almost as impressive as her bio.

Feldblum graduated from Harvard Law School and clerked for Supreme Court Justice Harry Blackmun. She was legislative counsel for the ACLU’s AIDS project, where she played a key role in drafting the Americans with Disabilities Act. She provided legal counsel on the Employment Non-Discrimination Act and other efforts to prohibit discrimination on the basis of sexual orientation and gender identity. She founded Georgetown’s Workplace Flexibility 2010 campaign. And she was the first open lesbian to serve as EEOC commissioner.

She served on the commission from 2010 to 2019 and was even nominated for a third time by President Trump before conservative Utah Senator Mike Lee, a longtime opponent of LGBTQ rights, blocked the nomination.

Feldblum is a partner at Morgan Lewis and director of the firm’s Workplace Culture Consulting & Training, which helps employers implement preventive strategies to eliminate harassment and enhance workplace productivity.

At the EEOC, Feldblum forged successful working relationships with her fellow commissioners, especially then-Chair Victoria Lipnic. This led to some ground-breaking actions, such as a wide-ranging report on workplace harassment and the Commission’s ruling that sexual orientation and transgender discrimination are forms of sex discrimination under Title VII.

With many of us waiting for the Supreme Court’s decision on Zarda, Bostock, R.G. & G.R. Harris Funeral Homes — which will either affirm or reject the EEOC’s approach to sex discrimination — we thought it was an ideal time to catch up with Feldblum. She opted not to share her gut feeling about how the Supreme Court would rule, but, as always, she was thoughtful and informative in her responses.

DG: You spent nine years at the Commission. What do you think is your legacy there?

CF: I feel my legacy falls into two broad categories, substantive and procedural. On the substantive side, I feel the Commission made huge strides in protecting LGBT people under Title VII by ruling that sexual orientation and gender identity discrimination are forms of sex discrimination; in advancing employment rights for people with disabilities by reinvigorating the affirmative action requirements for federal agencies under Section 501 of the Rehabilitation Act; and in protecting pregnant women by issuing guidance that ensured they could receive light duty work when needed, which was adopted in part by the Supreme Court. I feel grateful that I was able to play a leadership role in those substantive areas.

On the procedural side, I enjoyed digging into the logistics of the EEOC and helping with strategic planning for the agency. The digital charge system, as well as the respondent and charging party portals, have enabled the EEOC to continue working well during this COVID-19 pandemic. I will always be proud of the contribution I made towards those advancements in technology for the agency.

DG: What is the biggest difference you see between the private and federal organizations when it comes to EEO issues?

CF: I have been struck more by the similarities than by the differences. In both private and federal organizations, I have met incredibly committed people who care deeply about EEO issues. In both types of organizations, I have met people who are interested in going beyond EEO compliance to broader workplace culture change. And in both private and federal organizations, I have seen people struggle with similar challenges, whether it is a limited amount of resources or skepticism from some quarters as to the utility of investing in workplace culture change. This is probably why it is good that I’m an optimist. I believe that the utility of robust EEO compliance and workplace culture change, in both private and federal organizations, will carry the day.

DG: It’s been almost four years since the Select Task Force on the Study of Harassment in the Workplace was released. Is there anything you would add, take out, or clarify if you were in charge of updating it now?

CF: I believe the Report of the Co-Chairs of the Select Task Force on the Study of Harassment has stood the test of time. It remains a very useful document for anyone wishing to understand the prevalence and scope of workplace harassment, the reasons for under-reporting of harassment, and new ideas for “rebooting harassment prevention.” I do not think there is anything I would take out of the Report. But together with my colleague Sharon Masling [former Chief of Staff for Feldblum at the EEOC], who joined me at Morgan Lewis as a Co-Director of Workplace Culture Consulting, we have built on and expanded the work and the ideas of the Report. Over the course of a year here at Morgan Lewis, we have created a quantitative survey on assessing culture, developed a system for a qualitative assessment of workplace culture, and refined a Respectful Workplaces training. All of this work builds on the research and insights of the Report.

DG: Are you seeing an increase in discrimination and harassment in the workplace and/or in the public space as COVID-19 has taken over the globe?

CF: The evidence is pretty clear that Asian-Americans have been the victims of increased harassment and hate crimes during the COVID-19 pandemic. The Asian Pacific Policy and Planning Council has collected data of over 1,700 incidents of verbal harassment, shunning and physical assaults against Asian Americans since March 2020. These reports come from 45 states and Washington DC and over a third of the incidents happened in public venues. I am sure workplaces are not immune from the possibility of discrimination and harassment against Asian Americans. I feel that the employers I have been able to work with over the past year are well-positioned to stop this form of discrimination and harassment from permeating their workplaces. But we need this to stop everywhere.

DG: What should the EEOC’s approach be to cases involving sexual orientation and gender identity in the federal workplace as we await the Supreme Court ruling?

CF: Keep going until the Supreme Court rules. The EEOC has continued to accept charges from LGBT employees and applicants who allege employment discrimination on the basis of sexual orientation and gender identity. That is precisely what the agency should do, since it has not voted to change its position on this issue. The question is whether the Supreme Court will read the law as the EEOC did. That is what we are all waiting to see.

[Editor’s Note: The Supreme Court decision in Zarda, Bostock, R.G. & G.R. Harris Funeral Homes will be discussed in the session The Latest on Sexual Orientation and Transgender Discrimination during FELTG’s weeklong conference-like virtual training event Federal Workplace 2020: Accountability, Challenges, and Trends July 27-31, 2020. Register for one, several or all sessions. And EEO counselors and investigators can learn more about the topic and earn refresher hours during the July 9 webinar The Latest on Sexual Orientation and Gender Discrimination in the Federal Workplace.]

Gephart@FELTG.com