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Three Things to Consider as You Prepare for Employees’ Return to the Workplace

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By Dan Gephart, May 20, 2020

While the nation’s slow re-opening is being welcomed by struggling small businesses and Americans eager for a return to normalcy, it is also being met with hesitation and fear by many employees who will soon be making their way back to the workplaces they last occupied several weeks ago.

They are not the only ones who are hesitant. You probably are too. And you should be. Bringing teleworkers back to the physical workplace amid a pandemic will not be easy. Agency HR/EEO professionals, attorneys, supervisors, and managers play important roles in ensuring that their agencies follow the appropriate guidelines, comply with laws involving leave and reasonable accommodation, and meet their burden for providing a safe workspace.

Last month, we looked at the rise in virus-related discrimination and harassment against Asian Americans and Pacific Islanders. That is an ongoing problem, as EEOC Chair Janet Dhillon alluded to in a recent message sharing her concerns about race and national origin discrimination.

“Amidst the challenges we are all facing during these uncertain times, the anti-discrimination laws the EEOC enforces are as vital as ever,” Dhillon wrote. “The EEOC is rising to the challenges before us, continuing our mission of advancing equal employment in the workplace and enforcing our anti-discrimination laws.  The EEOC urges employers and employees to be mindful of instances of harassment, intimidation, or discrimination in the workplace and to take action to prevent or correct this behavior.  Our collective efforts to create respectful workplaces for all our nation’s workers, even during these trying times, will enable us to emerge from this crisis stronger and more united.”

If you caught Katherine Atkinson’s insightful and engaging virtual training EEO Challenges in the COVID-19 World last week, you are now aware of the numerous EEO challenges you’ll soon face, if you haven’t already. (If you missed the training, no worries: Katie will be presenting it again on June 30. Register here. And then scoot on over to here to register for Federal Workplace Challenges in a COVID-19 World on June 10, where we’ll cover leave, whistleblowing, mental health crises, reasonable accommodation, and much more.)

This month, we offer three bits of advice as you prepare for the eventual return of employees, the first two of which will be covered extensively in EEO Challenges in the COVID-19 World on June 30.

Beware of the potential liability of making age a factor in employment decisions.

The evidence is clear, and it’s been repeated ad nauseum by everyone from the CDC to the President to your neighbor: The older population, specifically those 65 years old or older, are at a heightened risk for contracting the coronavirus.

So what do you do with that information? Here’s what you can do: Recognize the risks to all of your employees, particularly those most vulnerable, as you facilitate the safe and healthy return to the workplace.

Here’s what you can’t do: Take an employment action against an employee because of his/her age and not for a legitimate, nondiscriminatory reason. Avoid any statements or actions that indicate an age-related bias.

Does that mean you can’t forbid your older employees from returning to the physical workplace? This is where the waters get murky. Such a decision appears discriminatory on its face, but there may be some legal wiggle room because of the importance of health and safety of workers and the fact that this virus disproportionately impacts older individuals. Your best bet is to stay current with guidance out of the EEOC, CDC, White House, OPM, and OMB.

Meanwhile, keep an eye out that you, supervisors, or coworkers do not create a hostile work environment for employees based on their age, or their perceived vulnerability.

Brush up on the Americans with Disabilities Act, and include COVID-19 in your analysis.

As Katie explains during the virtual training EEO Challenges in the COVID-19 World, the ADA is relevant to the current pandemic in at least three significant ways.

  1. It regulates employers’ inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities. In pre-pandemic times, it would have been unlawful for agencies to take employees’ temperatures at work. Not now, though. Not only can agencies take employees’ temperatures, but they can also administer COVID-19 tests, because COVID-19 is currently a direct threat.
  2. It prohibits covered employers from discriminating against individuals with disabilities or excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a direct threat. And since March 2020, a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace.  The most recent CDC and public health authorities’ assessment provides the objective evidence needed to deem COVID-19 a direct threat.
  3. It requires reasonable accommodations for qualified individuals with disabilities during a pandemic. Employees with COVID-19 are not entitled to reasonable accommodation solely by virtue of having the disease. Does that mean you should dismiss the thought of accommodating an employee recovering from COVID-19 or at risk for COVID-19? Consider an employee with an underlying respiratory condition: You should follow the usual analysis for determining if the employee is a qualified individual with a disability.

Effectively communicate changes and policies with your employees.

Do you remember labor-management partnerships? Regardless of your opinion on this Clinton-era concept, you have to admit: A strong working relationship between unions and management would be especially helpful these days.

Some of the changes to the physical workplace over the next year could be substantial, particularly until a vaccine arrives on the scene. Tightly filled open workspaces are likely a thing of the past. Some private-sector employees are installing clear acrylic safety shields (think sneeze guards) between employee cubicles. We can likely expect more environment-altering innovations.

How will that play out in the federal workspace? Agencies and unions have waged battles over inches of space in an office. Think of how these new workplace layouts and innovations will go over with union reps. And what will bargaining unit employees think of new restrictions such as mask requirements or enforced social distancing requirements? How can any of the sudden and dramatic workplace changes be implemented in a way that makes everyone comfortable and limits labor clashes?

Few contracts address any of the specific changes we’re going to see implemented. However, as FELTG instructor Joe Schimansky reminded me last week, most contracts include the statutory right for agencies to take whatever actions may be necessary to carry out their missions during emergencies. Joe will undoubtedly be covering these challenges when he presents FLRA Law Week with fellow FELTG instructor Ann Boehm August 3-7.

We’re entering uncharted waters, and there’s only one thing we know for certain: Effective communication is the starting point. As always, FELTG has you covered: Join Dr. Anthony Marchese on August 19-20, 2020 for the virtual training program Effectively Managing and Communicating With Federal Employees. Good luck out there. Gephart@FELTG.com

And Now a Word With … Bob Woods

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By Dan Gephart, May 20, 2020

We are thrilled to announce the newest addition to our FELTG Faculty – Bob Woods (pictured at right). As a former federal conference program chair, I had the opportunity to work with Bob in recent years. He’s smart, engaging, approachable, and cares about the federal workforce. In other words, he fits right in with the rest of FELTG’s instructors.

If you have seen Bob present or if you’ve worked for the Department of the Navy, then you already know this about Bob. If not, you’ll get to see and hear him in action soon. Bob will be one of the presenters during the FELTG Virtual Training Institute’s Taking Defensible Disciplinary Actions on June 1-3, 2020 and EEOC Law Week August 10-14, 2020.

Most recently Bob served as the Principal Deputy Assistant Secretary (Manpower and Reserve Affairs) for the Department of the Navy. He  was the principal advisor to the Assistant Secretary in executing responsibilities for the overall supervision and oversight of manpower and reserve component affairs of the Navy, including the development of programs and policy related to military personnel (active, reserve, retired), their family members, and the civilian workforce; the tracking of the contractor workforce; and, the oversight of Human Resources systems within the Department.

Previously, Bob served as  Assistant General Counsel (M&RA) where he was legal advisor to the Secretariat for matters concerning military and civilian personnel policy. He also coordinated the efforts of Navy attorneys worldwide in administrative and federal court employment litigation. He was appointed Special Counsel Litigation where he was responsible for the most important litigation matters under the cognizance of the General Counsel. His pre-Navy career included stints with the General Services Administration and the Department of Commerce, where he handled labor and employment litigation.

Bob retired from the U.S. Air Force in 1998 after more than 20 years of active duty.

We had to put an end to the FELTG Faculty initiation process a few years ago, so instead, we’re submitting Bob to an And Now a Word With … interview.

DG: What’s the best advice you’ve received that had the most impact on your federal career?

BW: I’d have to say that in addition to “follow the golden rule,” the best advice I received was the tried and true (for the most part) “bloom where you’re planted.” About 98 percent of the time, I was “planted” in places where I could bloom and thrive. In those cases, I found that putting in the work and being a generally cheerful and helpful colleague enabled me to be recognized for my potential and helped me get the assignments and jobs that I wanted and that helped me progress. I learned that I was/am responsible for myself and that I can choose to be sunny (or gloomy). Learn your craft, be inclusive, take on the tough assignments, be timely, be collegial and you’re likely to be successful. In those very few cases where I was “planted” in less than “fertile soil,” I made an effort to improve the conditions by doing those things (hard work, cheerful colleague, etc.) that helped me thrive. Sometimes however, no matter what you do, you can’t fix toxic conditions and you have to find a way to move on.

DG: What’s the federal employment law-related myth that you think is most prevalent government-wide?

BW: I think the most prevalent federal employment law-related myth I’ve encountered is that you can’t fire a civilian. In my experience, many supervisors suffer poor-performing or toxic employees for far too long. These employees make up a very small fraction of the civilian workforce, but account for a disproportionate amount of grief. In my opinion, the tools available to deal with poor performers are sadly underutilized, despite the fact that they are fairly straight forward and relatively easy to use.

DG: How can that be fixed?

BW: This is clearly a leadership issue. Some supervisors would rather put up with the poor performer than use these tools. This is probably because they either don’t understand how to use these tools or they’re afraid of having to defend against the employee’s complaint or appeal (or a combination of the two). To fix this problem, supervisors need to be taught how to use the tools, provided good support from their leaders, HR and Legal teams, and held accountable themselves by their supervisors to do the right thing.

DG: What’s your favorite part of teaching/presenting?

BW: I enjoy the fact that I’m able to share what I know with the audience and I enjoy interacting with them. Federal employment law can be a complicated topic and I enjoy breaking it down for folks to be able to better understand and use these tools.

Gephart@FELTG.com

And Now a Word With … EEOC’s Dexter Brooks

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By Dan Gephart, April 21, 2020

For a dozen or so years, I was a regular attendee at the EXCEL Conference, put on annually by the Equal Employment Opportunity Commission. I’m an introvert, so conferences could be a challenge for me. But I always felt at ease at EXCEL once I saw Dexter Brooks and his beaming smile walking down the hallway toward registration.

You’d be hard-pressed to find a better person to fill the role that Dexter performs at EEOC, where he is associate director of the Federal Sector Programs Office within the Office of Federal Operations. The SES-er leads FSP’s efforts to help agencies develop strategies to prevent discrimination. Dexter knows EEO law top to bottom, and he has a deep insider’s understanding of how EEO plays out at federal agencies. He is also an effective and engaging presenter, able to convey his EEO knowledge in practical and understandable bites.

FELTG caught up with Dexter before the country was turned upside down by the COVID-19 pandemic. We wanted to hear what OFO’s approach was to cases involving sexual orientation and gender identity as we await the Supreme Court’s ruling on Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC. The combined cases raise the issue of whether Title VII’s protections against sex discrimination prohibit discrimination on the basis of sexual orientation and gender identity. The ruling is expected later this term.

The agency deferred on the question, not wanting to get ahead of any decision coming out of the Supreme Court. Understood. So we turned our attention to discrimination trends in the federal workplace.

DG: In what areas do agencies need the most training help?

DB: Based upon Federal Sector Programs’ complaints data collected from federal agencies, EEOC’s Appellate Review Programs’ findings of discrimination and procedural reversals, and FSP’s outreach and technical assistance to agencies, it appears that agencies are most in need of training on retaliation/reprisal, reasonable accommodation, non-sexual harassment, properly identifying and framing hostile environment harassment claims, identifying and resolving conflicts of interest issues that arise during the administrative EEO complaints process, and barrier analysis.

DG: It’s been a few years now since the agency’s report on harassment, and the sharp increase of sexual harassment complaints prompted partly by the #MeToo movement. What trends are you seeing in terms of harassment complaints? And have you noticed any considerable changes in how agencies are training their employees on harassment?

DB: Between fiscal years 2012 and 2018, federal agency sexual harassment complaints increased by about 1 percent, with a total of 3.1 percent of all complaints alleging sexual harassment in 2012 compared to about 4.4 percent of all complaints alleging sexual harassment in 2018.

After the issuance of the EEOC harassment report, EEOC developed new training classes for employees and managers on creating and maintaining a respectful workplace. These classes teach employees how to create a culture of respect using bystander intervention techniques and instruct managers how to identify and address uncivil behavior before it rises to the level of harassment. These modules are focused on proactive prevention rather than the traditional legal/compliance modules that typically had been the centerpiece of anti-harassment training. The demand for this type of training in the federal sector has been robust and has increased each year since the training’s 2017 rollout.

This is consistent with information FSP has received from agencies during outreach, which revealed agencies are not limiting their anti-harassment efforts to mandatory compliance training but are adding to their training modules on topics such as cultural awareness and civility.

DG: The workplace is as divisive as it has ever been. Is that being reflected in the number and type of claims you are seeing?

DB: Generally, the rate of counselings and complaints have seen a spike since fiscal year 2014, reaching a peak in fiscal year 2018 at 37,042 counselings — an 11 percent increase since fiscal year 2014. This is fairly consistent across all bases as of fiscal year 2018. Complaints also reached their highest level since fiscal year 2014 at 15,578 — an 8 percent increase. This increase appears to be across all bases, as the proportion of complaints filed by statute has remained consistent during this same time period, with Title VII comprising about 56 percent of all complaints, followed by ADEA at 22 percent, Rehabilitation Act at 21 percent, EPA at .48 percent and GINA at .42 percent.

DG: How is the EEOC doing on the backlog of cases over 500 days old? How long is a typical EEOC appeal from the time it’s received until the time it’s issued?

DB: Currently, [the Appellate Review Program] has 124 pending cases over 500 days old. The average processing time for an appeal is approximately 312 days. By comparison, in FY 2019, the average processing time was 399 days. Gephart@FELTG.com

Flatten the Curve on Virus-related Workplace Harassment

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By Dan Gephart, April 15, 2020

As the grim realities of the COVID-19 pandemic began to spread across the country in mid-March, so did discrimination, harassment, and the unfair treatment of some Americans. Spurred on by references to coronavirus as the “Chinese Flu” and, even more disgustingly, “Kung Flu,” the unfair treatment took many forms with one commonality – those on the receiving end were thought to be Chinese.

The California-based Asian Pacific Policy & Planning Council received nearly 1,200 reports of harassment during a two-week period in mid-March. Most were reports of verbal harassment. In one case, a young woman was screamed at and spat upon on as she walked down a San Francisco street. It’s not limited to California. Across the country, numerous Asian Americans and Pacific Islanders have experienced everything from microaggressions and racial profiling to violence.

The biased treatment has taken on economic forms as well. While Americans bemoaned the lack of toilet paper, rolls upon rolls of the desired bathroom tissue sat on shelves in Korean and Chinese groceries across the country. Chinese restaurants saw a significant drop in customers even before restrictions on restaurants were put in place.

Recent reports optimistically suggest that social distancing efforts may be flattening the curve of the virus. But they do not suggest a flattening of this ignorance that leads to discriminatory actions. Bias may appear to be dormant now as the majority of employees work from home. However, you need to be aware that it could erupt anew when employees return to the physical workplace.

Employees are protected from harassment and disparate treatment based on national origin. National origin is a protected category and it’s broadly defined. The law protects employees against discrimination based on an individual’s place of origin, as well the origin of an individual’s ancestors. It protects individuals who have the physical, cultural, or linguistic characteristics of a national origin group. The law protects those who are married to a person of a national origin group, have a name closely associated with a national origin group, or belong to an association that promotes the interest of a national origin group. In its 2016 guidance, the EEOC noted that a lot of national origin discrimination tends to be intersectional, which means the individual is discriminated against based on national origin and another protected basis, such as race or religion.

Another important point: Employees are also protected from discrimination based on perceived national origin, which seems to be the case with much of the virus-related harassment.

If employees create a hostile work environment for a coworker because of his/her/their national origin based on some uneducated reasoning attached to COVID-19, it’s your responsibility to promptly investigate and correct those actions. You shouldn’t take action just to meet your legal obligations. Taking action inspires the trust of your employees and generates their confidence that you will take all allegations seriously.

To show that you’re serious, take corrective action that:

    • Is designed to stop the harassment.
    • Includes disciplinary measures that are proportional to the seriousness of the offense.
    • Doesn’t adversely affect the victim of harassment.
    • Addresses harm, such as reinstatement, expungement of disciplinary records, restoration of leave and other appropriate remedies, including an apology from the harasser.

You’ll learn more when you attend Preventing and Correcting Discrimination: A Focus on Race, Color, and National Origin on Thursday, April 23.  The presentation by FELTG Instructor Ricky Rowe, the former National EEO Manager for the Department of Veterans Affairs, is one of nine live instructor-led events taking place during the FELTG Virtual Training Institute’s three-day Emerging Issues in Federal Employment Law event, April 21-23.

While the country has always rallied to meet its great challenges, our sad historical tendency has also been to find a target to blame. This has led to numerous horrors, such as Japanese internment camps or the lingering discrimination against American Muslims. Don’t let it happen in your workplace. Gephart@FELTG.com

Managing the Workplace During the Coronavirus Pandemic

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By Dan Gephart, March 19, 2020

First, it was the guidance from the Office of Personnel Management less than two weeks ago. And then as last week ended, the White House recommended that agencies ensure continuity of operations and keep their employees safe by expanding telework and leave options. We are looking at a new federal workplace reality for, at least, the near future.

Here are some suggestions for managing the workplace, while protecting your employees, in this new reality.

Get over your issues with telework. It’s been 10 years since the Telework Enhancement Act was signed by President Barack Obama. Your agency should have a plan, even if that plan was scaled back over the last couple of years. One of the reasons telework was touted so strongly once upon another Administration is because it’s an agency’s best tool to ensure the continuity of its essential functions.

It’s hard to imagine a situation that aligns itself more with the use of telework. You have seemingly healthy employees who can work, but because of their contact with a person who may be symptomatic, they are quarantined out of the workplace.

Earlier this month, OPM sent out the following guidance:

“For an employee covered by a telework agreement, ad hoc telework arrangements can be used as a flexibility to promote social distancing and can be an alternative to the use of sick leave for exposure to a quarantinable communicable disease for an employee who is asymptomatic or caring for a family member who is asymptomatic. An employee’s request to telework from home while responsible for such a family member may be approved for the length of time the employee is free from care duties and has work to perform to effectively contribute to the agency’s mission.”

Most agencies would agree that telework is not the right option for employees who are taking care of children at home during the workday. And that was the standard practice – until recently. OPM suggested that agencies loosen up their policies to allow employees to telework even if they’re caring for children at home due to school closings.

Once this health crisis is in the rearview mirror, I hope the Administration, OPM and agencies reassess the value of telework and expand programs so they are better prepared for future emergency situations. And it doesn’t hurt that telework will also help agencies recruit and retain employees, increase productivity, reduce government spending, and accommodate some employees with disabilities.

Hold employees accountable for performance and conduct. A telework assignment is not an offer to Netflix and Chill. Remember this: Work is not a place, it’s a thing you do. And now, more than ever, you need employees who are doing their “thing” as best they can.

Follow these best practices as you manage teleworkers:

  • Review your employees’ telework agreements.
  • Communicate your expectations.
  • Model expected behavior, especially if you are also teleworking.
  • Support your employees. Be available to them.
  • Don’t over-monitor.

What about asymptomatic employees who were struggling with performance before telework became an option? If an employee is currently in the middle of demonstration period and is placed on telework, that demonstration period should continue as scheduled, whether there is a week, two weeks, or more left.

However, if an employee isn’t eligible for telework while they are quarantined, then it’s a different story. If the employee is on sick leave or  weather and safety leave, their approved time off cannot be used against them. Re-start the demonstration period when their leave ends and they return to the physical workplace.

Authorize weather and safety leave. Wait up, did I just say weather and safety leave? Are we expecting a late winter Snowmaggedon?

Not at all. OPM and the White House suggest that weather and safety leave be used for those asymptomatic employees who are “subject to movement restrictions” and aren’t a part of the telework program. 

Per OPM: “This determination is based on the significant safety risks for other employees and the general public that would be incurred if such an employee were allowed to travel to and perform work at the employee’s normal worksite.”

There is this disclaimer in OPM’s guidance: “The use of weather and safety leave would not be appropriate in cases of communicable diseases that have not been designated as quarantinable by public health authorities.”

Weather and safety leave isn’t the only option. Review OPM’s guidance for information on the use of sick leave, annual leave, and more. And you’ll be sure to get answers when you join us for Absence, Leave Abuse, and Medical Issues Week June 8-12 in Washington, DC.

Don’t get hung up on sick notes. OPM wisely allows agencies to be liberal with doctor note requirements for sick leave of three days or more requirement. (Quick reminder for future non-COVID-19 days: Agencies may require medical evidence for which sick leave is granted for fewer than three days if it determines the evidence is necessary.)

The government doesn’t want someone who has had contact with the coronavirus to be in the workplace, possibly infecting others. But tests for the virus are hard to come by so far. For that reason, OPM asked agencies to be “mindful about the burden and impact of requiring a medical certificate.”

“An agency may consider an employee’s self-certification as to the reason for his or her absence as administratively acceptable evidence, regardless of the duration of the absence.” Gephart@FELTG.com

And Now a Word With … OSC’s Louis Lopez

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By Dan Gephart, March 3, 2020

Louis Lopez, Associate Special Counsel, Investigation and Prosecution, Office of Special Counsel

Last week, the “Make it Safe Coalition” sent a letter to Congressional leaders with this ominous warning: The Whistleblower Protection Act “is at a severe risk of complete breakdown” and “on the verge of paralysis.”

The coalition is made up of several organizations, including the Project on Government Oversight and the Government Accountability Project, and they blamed the Senate for not acting on at least two of the three Merit Systems Protection Board nominees placed before them. Two members on the now currently member-less board would provide the quorum needed to act on the expanding backlog of more than 2,500 cases that have been piling up over the last 3-plus years.

“This means the Office of Special Counsel cannot seek stays for temporary relief against retaliation. When employees prevail after administrative hearings their victories remain indefinitely in limbo while agencies petition for review by a nonexistent Board. This is unprecedented,” the coalition wrote.

Regular FELTG Flash and Newsletter readers know how concerned we are about the lack of a quorum at the Board. The Office of Special Counsel is concerned, too, according to Louis Lopez (pictured above). As the Associate Special Counsel, Investigation and Prosecution at OSC headquarters, Lopez oversees cases brought under the Whistleblower Protection Act, the Civil Service Reform Act, the Hatch Act, and USERRA.

“Yes, OSC is concerned for a couple of reasons,” Lopez explained. “First, as Special Counsel Henry Kerner has publicly stated, without any board members at MSPB, ‘OSC is unable to fully protect federal employees who have been retaliated against or were subjected to unfair personnel practices.’

“For example, OSC is unable to obtain formal stays of problematic personnel actions from the Board at this time. Second, and equally important, MSPB reports a rising backlog of whistleblower and other federal employee appeals that cannot proceed to final adjudication until the Board has a quorum. Regrettably, these delays often cause further economic and emotional harm to whistleblowers and other federal workers who have cases pending with MSPB.”

Based on the questions we’ve been receiving from attendees at our onsite training over the last few months, there is a lot of interest and concern about whistleblower laws these days. And there is a little confusion, too.

So we reached out to Lopez for answers. Lopez has had a distinguished federal career, working for the Department of Justice, the Equal Employment Opportunity Commission, and the Federal Bureau of Investigation before moving onto the OSC. He worked in the private sector for law firms in DC and Chicago and at Washington Post Digital. Lopez has also taught advanced courses on labor and employment law at Georgetown University.

Some of the questions we received in class dealt with whistleblowers in the intelligence community. The OSC does not have jurisdiction over whistleblowers in the intelligence community, so we could not address that here. Answers to some questions are dependent on facts we don’t know, so we greatly appreciate Lopez providing this guidance.

DG: We get a lot of questions about a whistleblower’s motive. Does a whistleblower’s motive matter? What if they’re just trying to get someone in trouble?

LL: Under the statute, a whistleblower’s motives, characterized as good or bad, for making the disclosure should not matter.

DG: What if it turns out the whistleblower is wrong and there was no waste, fraud or abuse happening, they just thought there was?

LL: A whistleblower does not have to be correct about their disclosures under the statute. Rather, they must have a reasonable belief that the wrongdoing occurred.

DG: How does an adjudicator know whether or not a whistleblower has a reasonable belief?

LL: Generally, when assessing the reasonableness of the whistleblower’s belief, the adjudicator will ask whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that there exists one of the statutory types of wrongdoing. In other words, the adjudicator must determine whether a person standing in the employee’s shoes may reasonably believe, given the information available to the employee, that the disclosed information evidences one of the statutory types of wrongdoing.

DG: Can a whistleblower be guaranteed anonymity?

LL: Whistleblowers are asked to sign a consent statement on the complaint form indicating their preference regarding the disclosure of their identity or circumstances about their case. Release of information from OSC files is governed by the Privacy Act. OSC takes very seriously a whistleblower’s decision to remain anonymous and would make every effort to protect their identity.

DG: If the whistleblower chose to be anonymous, what would the penalty be for a manager exposing a whistleblower to the rest of the staff and/or agency?

LL: For prohibited personnel practice cases, the vast majority of whistleblowers alleging retaliation consent to the release of their identity because it would otherwise be impossible to obtain corrective action in those cases. Regardless of anonymity, a manager’s reaction to a whistleblower’s complaint may be evidence of retaliatory animus or, in an extreme case, even create a hostile work environment. Although rare, OSC will assess these circumstances on a case-by-case basis to determine an appropriate course of action.

[Editor’s note: OSC’s Disclosure Unit is more likely to have a higher rate of anonymous whistleblowers.]

DG: What if the whistleblower is currently on a Performance Improvement Plan, which is nearing its end. Should the PIP be put on hold? Should the PIP be considered separate? Can an agency remove a whistleblower for performance?

LL: A PIP may be considered a threat of a personnel action and, as such, is independently covered under our statute. OSC can investigate an agency’s placement of an employee on a PIP as part of a PPP case regardless of whether a subsequent personnel action occurs. Whistleblowers, like all federal employees, can be removed for poor performance. But OSC’s role in a PPP case is to determine whether an agency’s stated performance concerns about an employee are a pretext for retaliation. Our handling of each PPP case, including how to address an existing PIP, depends on the facts of that case.

DG: What is the one piece of advice you’d give an agency and/or supervisor that would most help them avoid, whether consciously or subconsciously, retaliating against a whistleblower?

LL: Actively develop a culture that treats whistleblowing as a valuable public service. Agency officials often feel defensive when a whistleblower identifies problems under their purview, which can lead to unconscious bias and retaliatory employment decisions. If employees at every level consider whistleblowing an asset to the agency, supervisors are less likely to view raising concerns as a personal attack.

Gephart@FELTG.com

A New Goofus and Gallant Navigate the Hatch Act

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By Dan Gephart, February 19, 2020

As a young child, I never dreaded a trip to the doctor’s office because that meant I would get my hands on an issue of Highlights for Children. I’d flip right past that boring Timbertoe family and dive into the latest adventures of Goofus and Gallant.

These cartoon brothers (or were they the same person?) explained right and wrong in the simplest of terms. You know what’s not so simple? Navigating a hyper-partisan presidential election season as a federal employee.

For more than 80 years, the Hatch Act has kept political activity out of the day-to-day running of the federal government. But the Hatch Act is under fire. High-ranking administration officials flaunt the law, and critics claim that the Hatch Act restricts free speech. In an op-ed for Federal News Network, Special Counsel Henry Kerner countered these claims and declared that the Hatch Act remains “foundational to good government.”

I agree with the Special Counsel.

In these unique times, it’s critical that you, your employees and all others who fall under the auspices of the Hatch Act execute your duties as civil servants in a non-partisan manner – and that the taxpayers you serve know they can count on you to do that. It’s not easy, and it’s about to get even more difficult. Super Tuesday is a couple of weeks away, but it’s still 9 long months until Election Day. If you feel like you’re being assaulted by political clatter now, hold on. This racket is getting turned all the way up to 11.

So we’re introducing you to a new Goofus and Gallant to help you understand how you can participate in the political process without violating the Hatch Act. Please welcome Hero and Half-wit.

[Note: These examples are not meant to make any political statements themselves. Also, these examples were created by FELTG, not OSC, but they are based upon OSC guidance. It is the OSC who would have to determine whether to bring a Hatch Act violation before the Merit Systems Protection Board. And those decisions are made on a case-by-case basis. These examples are meant to provide a distinction between various levels of political speech.]

Photographs
  • Hero has the official Presidential photograph of Donald J. Trump framed on her office wall.
  • Half-wit has the official Presidential photograph of Donald J. Trump hanging upside down on her office wall with the words “Impeached” written in big red letters.
  • Hero has had a framed photo of herself and her then-new husband with Michael Bloomberg hanging on her cubicle wall for the last eight years. The photo was taken at her wedding, and the former New York mayor, who is her second cousin, was a guest.
  • Half-wit has a picture of herself and her husband with Joe Biden on her cubicle wall. The photo was taken at a recent Biden campaign event.

It’s not a stretch to conclude that the Hatch Act prohibits federal employees from displaying pictures of political candidates in the federal workplace. There is an exception. However, it’s an awfully difficult bar to reach, as OSC pointed out way back in a 2008 advisory opinion.

“We advise that an employee would not be prohibited from having a photograph of a candidate in his office if all [our emphasis] of the following apply: the photograph was on display in advance of the election season; the employee is in the photograph with the candidate; and the photograph is a personal one.”

In a 2019 advisory opinion, OSC stated that the Hatch Act does not prohibit the display of official photographs of the president in the workplace. However, the photograph must be from an official source – either the White House or the Government Publishing Office. That means no pictures distributed by a political party, the president’s campaign or any other partisan organization. Also, official presidential photographs may not be altered in any way, and must be displayed in a traditional size and manner. Sorry, no life-size cutouts.

Political books and campaign material

  • During her lunch break, Hero quietly reads the latest political screed by a cable news personality in the cafeteria.
  • While away from her desk on lunch break, Half-wit’s computer screen saver flashes Make America Great Again, which her coworkers and some members of the public can see.

OSC says that displaying campaign material qualifies as a political activity, so that’s a big NO on MAGA screen savers. On the other hand, merely reading a book about politics or political candidates while in the federal workplace is not a Hatch Act violation.

Bumper Stickers
  • Hero parks her SUV with its Trump/Pence 2020 bumper sticker in a private garage for which the employee receives a subsidy from her agency.​​​
  • While on federal duty, Half-wit drives her car, which not only has a Trump/Pence 2020 bumper sticker, but also has the front hood covered with a wrap of President Trump giving a thumbs up.

The Hatch Act regs at 5 CFR 734.306 state that an employee may place a partisan political bumper sticker on his personal vehicle and park that vehicle in a federal parking lot or garage. An employee may also park the car with a bumper sticker in a private lot or garage for which the employee receives an agency subsidy.​​​ OSC has even ventured to suggest that two bumper stickers for different candidates is probably OK.

However, a May 2018 advisory letter cautioned against “displaying other partisan political materials, or even bumper stickers, in such a way that makes the vehicle appear to be a campaign mobile.” It’s my opinion, that a hood wrap is probably crossing that line, and without question, that’s the case when the car is being used while on duty. Oh, and if you don’t think car wraps like Half-wit’s exist, you should spend some time in Florida.

Email
  • Hero receives an email on her work account inviting her to contribute to Pete Buttigieg’s campaign. She immediately deletes the email.
  • Half-wit clicks on the link in the Pete Buttigieg Campaign email, and then forwards the email to her co-workers.

This is a real Hatch Act danger area. The definition of a partisan political email is broad – it’s any email that is directed at the success or failure of a partisan group or candidate in a partisan race. Simply receiving a partisan political email while on duty does not violate the Hatch Act. If that happens, hit delete. Once you forward the email, you’ve committed a Hatch Act violation.

Social media
  • At home, while no longer on duty, Hero likes a friend’s Facebook post expressing anger at Senator Majority Leader Mitch McConnell’s failure to act on specific legislation. The post suggests that friends in Kentucky vote for McConnell’s competitor Amy McGrath.
  • At home while no longer on duty, Half-wit refers to her official government bio whenever she posts on her Twitter account titled Moscow Mitch, which regularly suggests that followers contribute to Amy McGrath’s 2020 Senate campaign.

Social media complicated the Hatch Act so much that OSC had to create a whole new set of guidance several years ago. With time, those guidelines have started to make a lot of sense. Whether you are a less-restricted or further-restricted employee, you may express your opinions about a partisan group or candidate by posting, liking, sharing, tweeting or retweeting. However, you cannot:

  • Engage in political activity on social media while on duty or in the workplace.
  • Refer to your official title or position while engaged in political activity.
  • Suggest that anyone make political contributions.

Further-restricted employees are also cautioned against posting and linking to a partisan group or candidate’s Facebook or Twitter accounts, as well as sharing or retweeting content from those accounts.

For more information, I suggest you read our recent interview with the OSC Hatch Act Unit and visit the OSC website where there is a lot of guidance. And if you can’t find an answer, no problem. All you need to do is ask. If you are seeking advice about your political activity or the activity of another employee, you may request an advisory opinion from OSC by calling (800) 854-2824 or (202) 804-7002. You can also email the Unit at hatchact@osc.gov.

Gephart@FELTG.com

And Now a Word With … Dr. Anthony Marchese

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By Dan Gephart, February 11, 2020FELTG Instructor Dr. Anthony Marchese

The third page of the Partnership for Public Service report released last week explicitly hinged the federal workforce’s future success on agencies’ ability to do four things:

  • Collaborate internally.
  • Work closely together with other agencies.
  • Engage the public.
  • Establish connections with stakeholders from outside government.

Unfortunately, as the Partnership’s report makes clear, those are not four areas where the federal government has a particularly strong track record.

“That’s a tall order,” said Dr. Anthony Marchese (pictured above), the author of DESIGN: An Owner’s Manual for Learning, Living, and Leading with Purpose, as he read through the report’s four recommendations.

Dr. Marchese teaches FELTG’s Leadership Training Courses. That includes the course Connecting, Collaborating, and Creating: Mastering the Art of Meaningful Relationships, which, in light of the Partnership’s report, should probably be mandatory training for all supervisors and managers. [Note: All of FELTG’s Leadership Training Courses align with the Office of Personnel Management’s Executive Core Qualifications.]

“The biggest barrier to collaboration is the absence of trust,” Marchese said. “Healthy collaboration occurs when people work together with others to achieve a common purpose or shared goal. If trust is compromised, communication/information will be limited, people will possess a level of competitive antagonism toward others across the agency which results in battles over who receives credit for successes, fighting over scarce resources, inactive listening, and the reinforcement of existing organizational silos. Leaders who focus first on how to build trust (interpersonal – among employees and supervisors and interdepartmental – across the agency) will drastically increase the likelihood of collaboration.”

If collaboration is the largest boulder holding us back, then communication is the large boulder the size of a small boulder. It’s particularly challenging for supervisors.

“A recent Harvard study revealed that two-thirds of managers are uncomfortable talking with their staff,” Marchese said. “The discomfort wasn’t over having difficult conversations, leading performance reviews, or convincing an employee to stay. Managers simply reported being uncomfortable communicating in general.”

DG: Is that why so many federal supervisors struggle to hold their poor performers accountable?

AM: Both the federal and private sectors often promote great technical experts to supervisory roles without demonstrating key behaviors that are necessary for success. Leading conversations with employees is one of the most important activities of the supervisor. Even those of us with many years of experience may feel uncomfortable having a conversation with a poor performer. But, with thoughtful preparation, there is much that can be done to increase the likelihood of a positive outcome. Two things come to mind.

First, structured conversations lead to better conversations. The second thing is that as supervisors, we need to better understand how people can change behavior or grow their expertise. It is a lot easier to tell someone, “Change X – or else” versus helping to set this poor performer up for success by understanding and using the tools of the “Performance Paradigm.” People learn differently, people are motivated differently, people require different types of reinforcement and accountability.

DG: The country is divided these days, and that divisiveness often causes problems in the workplace. What advice would you give to someone who is leading people with wildly divergent opinions and beliefs?

AM: If I had a choice between a team of like-minded members versus one filled with vastly different types of individuals, I would choose the diverse team every time. A team with “wildly divergent opinions and beliefs” requires more time and patience to lead but with a thoughtful strategy, the outcomes can be incredibly impressive. Think about a team meeting in which the leader has charged the team with the task of solving a complex problem. The team with like-minded members will frame the challenge as well as the course of action quite similarly. The meeting will produce a predictable outcome.

On the other hand, a diverse team will probably have a spirited discussion with multiple perspectives, some healthy debate, and quite possibly, reach a remarkable outcome. Leaders who find themselves leading a diverse team should seek agreement on core outcomes/results, what we call “The What,” also the easiest part. Then create a member-centric strategy that focuses on “The How.” This is where most teams fail. Consider the following:

  • Openly discuss and celebrate team differences and explore implications for synergy and conflict.
  • Create “rules of engagement” for working with different members (behavioral styles, strengths, personalities).
  • Build Safety: Encourage members to speak up, actively listen, not go silent, and avoid multitasking (phones/laptops).
  • Check-in periodically: How are we working together? What is working well? Not so well? What needs to change? Remind the group of the core outcomes/results that everyone is after.
  • Conduct an end-of-project debrief. Celebrate your accomplishments and retrace the process that got you there. What did we learn from this experience?

DG: What’s the one skill keeping most managers from being effective leaders?

AM: Without any reservation, the leading skill most supervisors lack is the ability to navigate and engage a diverse workforce. There is significant evidence indicating that three-quarters of those with whom we work are different from ourselves. They process information differently. They frame success differently. They communicate and collaborate differently. They respond to conflict differently. Different isn’t better or worse. It’s just different. Unless a leader is skilled at understanding and engaging her own behavioral style and those of her employees, there is a strong likelihood that a tremendous amount of time will be spent using a trial/error approach to learning how to work together. This causes frustration, wastes time and resources, and even encourages early exits. Leaders need to know their people.

DG: An employee has just been promoted and will now be supervising her former coworkers. What advice would give you her as she prepares for her first day leading her former colleagues?

AM: First, breathe. You don’t have to have everything figured out on day one. Making the transition from individual contributor to successful supervisor takes time. The biggest pressure most new supervisors feel is self-induced. As you stand in front of the mirror, ready to head out to your first day, pause for a moment and smile. You can “do anything” but you can’t “do everything.” Your first day might feel a bit awkward. Your coworkers may be feeling the same thing, They might be asking themselves, “How is she going to act now that she is a manager?” “Will we still be friends?” “How are things going to change?” Here are some suggestions to help you have a great first day:

  • Be yourself: While your office may have moved locations, your relationships still exist as they did yesterday. Talk to people. Be visible. Keep your door open.
  • Listen: People are going to be curious about how things are going to change. As they inquire, let them know that you are going to spend a few weeks asking questions, getting to know the agency and its priorities, and even talking to a mentor. You want to do your homework first. Let your coworkers know that you are open to ideas.
  • Read Boundaries for Leaders: Results, Relationships, and Being Ridiculously in Charge by Henry Cloud. As you read the book, conduct a self assessment. Where are your areas of strength? In what areas might you be vulnerable?
  • Organize your observations/priorities. You will start to notice new things, even on Day One. Use your phone, tablet, or laptop to keep a running list of ideas. Think about organizing your thoughts into three categories: Leading Myself, Leading My Team, Leading the Agency. At the end of the week (or two), talk with your own manager about what you observed and establish priorities for the year.
  • Breathe.

Gephart@FELTG.com.

Creating a Thriving Work Environment in 2020: It’s Not a Laughing Matter

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By Dan Gephart, January 14, 2020

Chip is a hard-working and successful comedian. A few years ago, he was named the funniest stand-up comic in Philadelphia. He moved to Los Angeles and wrote for television shows. He returned to the East Coast and grew his reputation for hilarious headline sets, working an impressive array of comedy clubs.

On this recent January evening, however, he was telling jokes on a tiny stage in the back room of a South Jersey Pizzeria Uno.

A camera light flashed in Chip’s eyes. He saw the culprit, and reminded her of his pre-set warning against taking pictures, politely explaining how the flashes are distracting. The slightly annoyed audience member coldly told Chip she wasn’t even paying attention to his set. She was taking a picture of her dessert.

Sometimes you’re writing jokes for television stars. And then suddenly you find yourself competing for attention with a subpar pizza chain’s deep-dish sundae.

So how are things going in your job so far this year?

If you’re like most, you started the new year with resolutions, goals, and promises to improve your professional life. However, while we control whether we’re going to get our butt off the couch and our legs onto that treadmill, there are certain factors in the workplace that keep us from becoming our best professional selves.

As supervisors and HR professionals, you have some control over whether your workplace environment is one in which you, your colleagues, and your employees can thrive. Here are three specific actions you can take that will help your employees reach their professional goals and resolutions in 2020:

  1. Don’t ignore toxic employees

We discuss the 10-80-10 rule in some of our training classes. It’s a generality, sure, but attendees tell us it’s right on target. Here’s the rule: Approximately 10 percent of employees are rock stars – the people who get their work done really well before it’s due. They make your job easier and fun.

About 80 percent of employees are just fine, maybe not spectacular, but they get the job done and they don’t give you too many problems.

And then there’s the final 10 percent.

Some are just poor performers. But many of them are toxic employees. Their bad habits and de-energizing destruction take up the majority of your time and energy. And they generate noxious stress, which weaves its way into your life outside of work. If you ever had a toxic employee under your charge, you likely brought that stress home with you. Toxic employees do not wash off easily. And it’s not only you being served that daily dose of trauma. Toxic employees impact everybody in the workplace.

If you want to keep your rock stars and get the most from the 80 percenters, you must hold toxic employees accountable. They must meet the acceptable level on their performance standards. Their misconduct must be addressed immediately. Unfortunately, according to OPM’s Federal Employee Viewpoint Survey of every year since I’ve been reading them, that’s not happening much.

FELTG is there for you: Join us next month in Puerto Rico or April in Seattle for our flagship course Developing & Defending Discipline: Holding Federal Employees Accountable. Or contact me about bringing this class or another FELTG favorite, UnCivil Servant: Holding Employees Accountable for Performance and Conduct, to your agency.

  1. Set the tone on EEO issues.

Few can thrive in a workplace where employees feel unsafe, disrespected, or ignored based on their color, gender, religion, sexual orientation, disability status, or other EEO category.

As we’ve learned from the #MeToo movement, it’s not enough to simply state that you won’t tolerate harassment or discrimination. You need to take clear and distinct actions to prevent harassment and discrimination. One of those actions needs to be giving supervisors and employees the skills and knowledge to respond quickly, effectively, and appropriately when they see any inappropriate behavior, even if it doesn’t rise to the legal level of harassment or discrimination.

For years, many people in EEO-protected categories have done incredible work despite workplaces that failed to recognize their worth and dignity. Taking down those barriers requires more than lip service. It requires action. And it requires strong leadership.

Join us for EEOC Law Week in April. Or contact me to learn more about the many onsite EEO training programs we offer, including Preventing and Correcting Sexual Harassment in the Federal Workplace or Defending Against Discrimination Complaints: The Supervisor’s Role in EEO.

  1. And, finally, get some darn sleep.

More than a decade ago, the Centers for Disease Control and Prevention called insufficient sleep “a national health epidemic.” With the ubiquity of smart phones and the distraction of TV binge-watching, this epidemic has gotten worse.

I find it odd how so many people revere those who can function on little sleep. A few years ago, Forbes Magazine profiled 19 tech giants and celebrities who thrive on much fewer than 8 hours of slumber, dubbing them the “sleep elite.” At the time of his presidency, much was made of Bill Clinton’s ability to lead the free world while snoozing just a few hours each night. That’s cool, but it’s not something to emulate. Very few of us fall into the sleep elite category.

When is the last time you had a rough night of sleep? If it wasn’t yesterday, it was likely in the last week or month. I’m guessing you didn’t thrive the next day. Recent studies suggest you probably had trouble concentrating at work, and that lack of focus resulted in more errors than usual. Whether you recognized it or not, your emotional processing was severely hampered, too. And that’s if you even got to work. Other studies claim that insufficient sleep leads to a 20-percent higher chance of getting in a car accident.

So put that phone down at least an hour before you decide to close your eyes for the evening. Make that afternoon drink a decaf. And try to fall asleep and wake the same time every day – even on days off.

It’s time you took the lead in creating a workplace environment in which your employees thrive. Otherwise, we might as well all be working the back room at a South Jersey Pizzeria Uno. Gephart@FELTG.com

And Now a Word With … Michael Bogdanow

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By Dan Gephart, January 7, 2020

Michael Bogdanow, Acting Director of Regional Operations, Merit Systems Protection Board

When I first started working in the area federal employment law many years ago, I called around, looking for advice. One highly regarded and experienced attorney told me: If you need to understand anything at all about the Merit Systems Protection Board, talk to Michael Bogdanow (see photo).

I’ve been lucky enough to work with Bogdanow, MSPB’s Acting Director of Regional Operations, on a conference advisory board and to see him present many times. Whether it’s case law, procedure, or MSPB history, Bogdanow speaks with intelligence and authority, in his own unpretentious manner.

It makes sense that Bogdanow knows MSPB history. He has lived it. Not only was Bogdanow there at the agency’s inception, he actually worked for several years with the Board’s predecessor – the Civil Service Commission. The Board has faced its share of tests over its 40-plus years in existence, yet nothing like what’s happening now. It’s been three years since the Board lost its quorum, and it will soon be a whole year that the agency has gone without any Board members at all. Meanwhile, the pile of PFRs awaiting Board review continues to grow. (For more on that, be sure to read our earlier interviews with MSPB General Counsel Tristan Leavitt and James Read, Director, Policy and Evaluation.)

Bogdanow noted that Board has “always been ready to meet huge challenges.”

“Within its first three years, [the MSPB] was hit with about 11,000 appeals filed by fired striking air traffic controllers,” Bogdanow said. “And in 2013, three times that number of furlough appeals were filed as a result of sequestration. In both instances, the AJs and the Board worked almost non-stop to assure that the appeals would be decided with as little disruption to the normal workload as was possible under the circumstances.”

There is one thing that hasn’t changed over the MSPB’s long history, and that’s the myth that it’s impossible to fire a fed. That’s where we started our conversation with Bogdanow.

DG: Why do you think that myth persists that it’s impossible to terminate a federal employee, and what can be done to shatter it?

MB: You are certainly right, this is a persistent myth. One of the motivations for enacting the Civil Service Reform Act of 1978 was that same myth. A lot of changes were implemented in the law to put it to rest, but they did not succeed in ending it, and now more than 40 years later, the same argument endures.

However, OPM recorded a total of 29,785 executive branch employees who were removed for cause in fiscal years 2013-2017, and that number is far lower than the actual number because OPM does not track actions taken by the Postal Service, the intelligence community, and certain other agencies. During that same period, the Board decided more than 44,000 adverse action appeals, and fewer than 600 of them were reversed or mitigated.

I think that a significant part of the reason for the belief that federal employees cannot be terminated is that there are laws and regulations, as well as agency policies and procedures, that establish the system for removing employees, and to agency officials who do not use them regularly, they may seem daunting. In fact, those authorities are guides for how to take and prosecute such actions, and, if followed carefully, the process will become more obvious and yield the result the agency expects. It is not an exaggeration to say that the Board frequently sees lack of proper preparation both before agencies take an adverse action and also in prosecuting the action on appeal that contribute to the perceived difficulty of making a removal action stick. (Needless to say, we see this from both parties.) Of course, agencies must also be prepared to defend themselves against affirmative defenses appellants may bring, most frequently discrimination and whistleblower retaliation claims.

I should note that an MSPB Office of Policy & Evaluation publication in December 2016 found that rather than preponderant evidence, which is the standard required for proof of an adverse action before the Board, “90 percent of proposing officials and 84 percent of deciding officials reported that the standard they used was ‘beyond a reasonable doubt,’” the standard used in criminal proceedings. Thus, management’s perceptions of the hurdles faced in taking an action actually exaggerate their difficulty. That same publication noted the three greatest perceived barriers to removal were the agency’s culture toward taking such actions, the level of support given by managers and leaders, and the quality of service provided by the human resources office, none of which is attributable to the systems created by title 5 or to the MSPB.

In short, while nothing will guarantee 100 percent success, I would suggest that better preparation, from before an action is proposed and throughout the appeal process, would help shatter the myth.

DG: Why are removals most often overturned?

MB: MSPB generates statistics on many aspects of the appeals we address, and for adverse actions and performance-based cases, that includes the number and percentage of cases reversed on procedures, on the merits, because of a finding of discrimination, and because of a prohibited personnel practice (PPP) other than discrimination. Those statistics do not break down the categories based on the specific procedural failure or the problem found with the merits of the case. Leaving aside the number of cases reversed because of discrimination or a PPP, which are relatively small, the percentage of cases reversed on procedures is consistently lower than the percentage reversed on the merits.

To me that suggests that, contrary to the view that reviewing authorities like the Board throw procedural obstacles in the way of agencies so that they lose meritorious cases on the basis of insignificant or irrelevant procedures, in fact, it is the agency’s failure to meet its burden of proof that causes most reversals. In my view, agencies’ failure to do their homework by thoroughly investigating before bringing charges and preparing their cases to make the most persuasive presentation to the Administrative Judges and the Board account for a substantial percentage of merits reversals.

Another important aspect of Board caselaw that is frequently given insufficient attention is being sure to bring the correct charge. Because the Board and courts over the years have attached significance to the words used in a charge, and have insisted that agencies prove what they claim, agencies must know that criminal charges require proof of all elements of the crime, and that certain misconduct charges require proof of the employee’s intent. The distinctions between charges such as “theft” and unauthorized possession, between “insubordination” and failure to follow instructions, “falsification” and misstatement or lack of candor, between “threats” and inappropriate conduct, all make a tremendous difference in the proof an agency must present. If an agency has not assured itself that it can prove the specific charge it brought, it is unlikely to prevail.

Is that fair? Ask the employee who may be branded a “thief” when his only misconduct was that he borrowed or had unauthorized possession of government property, or the employee tarred as being insubordinate when he simply failed to follow a supervisor’s instructions.

There is little doubt that over the years, more attorneys have become skilled at raising challenges to adverse actions taken against their clients, which has led to increasingly technical, “legalistic” arguments. Moreover, adverse actions and performance-based actions were both created by Congress, so are statutory in nature, and are reviewable at a US Court of Appeals. As a result, the parties must both be prepared to argue and respond to the due process requirements of statute in an increasingly law-based environment.

DG: Only about 5 percent of terminations are for poor performance, and the rest are for misconduct. Why is there such a disparity?

MB: If your question really is why there are so many more actions taken because of misconduct than poor performance, I’d say that’s because there’s an infinite variety of misconduct on which charges can be based, misconduct is generally pretty obvious, it can be a one-time act, and it tends to get supervisors’ attention more quickly than does poor performance. Moreover, taking an action for misconduct does not require that the agency first take a set of steps to address the misconduct.

However, if you are asking why more actions based on performance are taken under chapter 75 (“adverse actions”) than chapter 43 (“performance appraisal”), I’d venture to say that although the CSRA was intended to make it easier to take action against poor performers, agencies have not found that to be the case. Chapter 43 establishes a system, one that governs not just separating or demoting a poor performer, but also establishing performance requirements, rewarding good performance, appraising performance, and providing an opportunity to demonstrate acceptable performance before removing an employee. Thus, there are more preparatory steps an agency must take to be able to effect an action under chapter 43. Still, the heart of chapter 43 is found in employee performance standards, which must be written so as to inform an employee of the tasks he must perform and the specific indicia of performance he must demonstrate in order to be rated at the various levels against which he is measured.

Absent valid performance standards, an action under chapter 43 will not succeed, and because a chapter 75 action based on performance may not be sustained if the performance at issue is “governed by and meets” the performance standards, valid standards are one chapter 43 requirement that cannot be ignored. Make no mistake, writing proper, understandable, substantive performance standards is often difficult, but Congress clearly expected that such standards would be implemented for the benefit of both the employee and the agency. In return for doing all of the required preparation before an action is taken, Congress gave agencies two major advantages over chapter 75. First, their action will be sustained if they meet a lower burden of proof, substantial evidence rather than preponderance of the evidence, and second, the Board may not mitigate a chapter 43 action where the poor performance is proven.

Board cases show that not only do some agencies fail to draft sufficient performance standards, but they may also add specific requirements to the process for taking an action under chapter 43 that are not imposed by regulation or case law. For instance, while the statute and the Board require that an employee be given an “opportunity to demonstrate acceptable performance” before an action is taken, neither has specified what the opportunity must consist of, how long it must be, or that training is a necessary component. Many agencies, though, add such requirements in their own policy and procedure documents.

Regardless of which of the two questions you are asking, I think the short answer is that taking an adverse action, even one based on performance, is a lot quicker, requires fewer preparatory steps, and can be accomplished even if all of the safeguards set by chapter 43 are not in place.

DG: What information could our readers learn that could make them more likely to pursue a removal for poor performance?

MB: I’m not sure that I know how to answer that question. Agencies have certainly had enough time to get comfortable with chapter 43 requirements, so suggesting that they become familiar with chapter 43 and even some of the legislative history of the CSRA that explains the reasons Congress chose to establish it might not be enough. It is, though, good management practice to comply with the requirements of chapter 43, not just for taking actions against poor performers, but also to do what 5 U.S.C. § 4302(a)(3) requires, to “use the results of performance appraisals as a basis for training, rewarding, reassigning, promoting, … [and] retaining … employees.”

Agencies must have performance standards for their employees, and if those standards are valid and accurate measures, the hardest part of the chapter 43 process is already done. Providing an “opportunity to demonstrate acceptable performance” as required by § 4302(b)(6), means just providing a chance for the employee to work for a reasonable period of time (which depends on the nature of the work) on his or her regular tasks so as to be able to show the ability to successfully perform those duties – or not. Therefore, the remaining parts of chapter 43 should all be straightforward, and in return, the agency will have a considerably lighter burden of proof if the employee files an appeal, and its action will be insulated from mitigation.

One other thing I would mention: I have often been asked to speak to agency groups about chapter 43, and when I ask why, since MSPB rarely sees appeals from chapter 43 actions, I’ve been told on several occasions that once an employee goes through the chapter 43 pre-action process and is unsuccessful, he recognizes that he is better off moving on to a job he is better able to perform than to fight the action.

Gephart@FELTG.com