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And Now Another Word With … Steve Shih

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Portrait of Steve Shih on Wednesday, Dec. 6, 2017 at NASA Headquarters in Washington, DC. Photo Credit: (NASA/Joel Kowsky)

By Dan Gephart, July 30, 2019

Anyone who has ever attended a mediocre leadership training has surely heard the story of the Janitor and the President. Per the legend, President John F. Kennedy was touring NASA in the agency’s early days when he came upon a man sweeping the floor. The president asked him what he was doing. The janitor replied: “Mr. President, I am putting a man on the moon.”

The Janitor and the President is often shared as an example of how a great leader gets buy-in to organizational mission. I imagine that most of you, like me, recognize it as fiction more than reality. The story has more holes than the colander shelf at Bed Bath and Beyond.

What I don’t doubt, however, is the space agency’s amazing success at making all facets of the organization feel a part of the mission, especially when it comes to EEO/Diversity.

Today we pick up our conversation from earlier this month with Steve Shih, NASA’s Associate Administrator of Diversity and Equal Opportunity. (See Part I of the interview here.) Shih and I didn’t discuss the Janitor, President Kennedy, or the Moon Landing. (Happy 50th anniversary NASA!). But Shih did mention the Low-Boom Flight Demonstration (a supersonic flight with technology that reduces the loudness of a sonic boom), the International Space Station, the Parker Solar Probe, and Mars InSight Lander. All these projects are collaborations with academic, commercial and international partners. And they all are projects taken with Diversity & Inclusion (D&I) and EEO in mind, according to Shih.

DG: One of NASA’s most publicized goals is the return to the Moon by 2024. How is EEO part of that mission?

SS: D&I and EEO is an enabler for this exciting mission, including in our emphasis on the equitable and inclusive contributions of the entire diversity of NASA’s organizations and workforce, and our historical and inspirational plan to not only land Americans but to also land the first woman on the moon.

Every aspect of this mission from the rocket to the European Service Module, to the Gateway lunar outpost, to the Lunar Lander – will involve NASA’s collaboration and partnership with other sectors and other countries, and the services of our diverse Astronaut corps.

DG: You’ve worked for several agencies. How does agency culture define EEO’s approach, and how would someone go about changing that culture?

SS: Different agencies have different approaches and different strategic emphases on D&I and EEO. As leaders and practitioners in federal agencies, we have a responsibility to help provide leadership on shaping a culture of inclusiveness, fairness, and employee engagement … and to align culture, policies, programs, and personnel management towards mission accomplishment, both in achieving immediate priorities as well as sustainment of effective and efficient services to the American people.

 

At NASA, our leaders and workforce understand the importance of D&I and EEO for mission accomplishment. Our past and most current work provide abundant examples of accomplishments that required inclusive participation and teamwork across NASA and with external partners in other sectors and countries.

 

DG: How does an EEO professional create an environment where employees take EEO training seriously?

SS: Practitioners can best generate support and commitment for D&I and EEO including training, by ensuring D&I and EEO initiatives align to mission and offer value for agencies, organizations, and workforces. A value-added approach fosters an intrinsic motivation by individuals to support training or other programs, whereas a compliance approach (e.g., mandatory requirement) rests on an extrinsic motivation that not only may fail to create genuine commitment, but sometimes can cause resistance and resentment.

DG: In light of the #MeToo movement, what are some things agencies should know about harassment?

SS: Across our country, we’ve learned a great deal about contributing conditions and risk factors for harassment. Research informs us harassers often possess the following qualities: lack of empathy, belief in traditional gender roles, and a tendency toward dominance/authoritarianism, particularly involving power imbalances between individuals.

 

We know more about factors that increase the risk of workplace harassment, including:

  • Homogeneous workforces
  • Workplaces with cultures or social norms that permit or excuse harassment
  • Existence of cultural and language differences
  • Coarsened social discourse outside the workplace
  • Workforces with many young workers
  • Workforces with “high value” or “superstar” employees
  • Workplaces that rely on customer service or client satisfaction
  • Workplaces where work is monotonous or consists of low-intensity tasks
  • Isolated workspaces
  • Workplaces with cultures that tolerate or encourage alcohol consumption
  • Decentralized workplaces

The EEOC has consistently provided outstanding leadership on the issue of harassment. Most recently, EEOC led a task force to study harassment and subsequently issued a June 2016 Report of the Co-Chairs of the Select Task Force on the Study of Harassment in the Workplace, and resources for employers to proactively prevent and to promptly correct harassment. The EEOC has issued many guidance documents on harassment. Additionally, EEOC’s “Model Equal Employment Opportunity (EEO) Program” Management Directive 715is extremely helpful for agencies to establish and maintain strong policies and programs for EEO, including for anti-harassment.

Gephart@FELTG.com

Are They Going to Regret Leaving?

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By Dan Gephart, July 17, 2019

It was 24 years ago this month, and I vividly remember that heart-pounding march from the desk I shared with a fellow reporter to the Editor’s office. The newsroom boss — we’ll call him X – was very talented. He was even more intimidating. And I was about to, for the first time in my professional career, tell my boss I was resigning.

At first, X offered the usual — a slight raise and a few minor perks. I felt flattered and appreciated. Once I made it clear that my decision was final, however, the mood abruptly turned sour. X looked me directly in the eye and ominously said: “You’re going to regret leaving the newspaper business.”

X scared the heck out of me.

In hindsight, though, X’s threat was pretty ridiculous. That small suburban newsroom never had as many employees as it did on the day I resigned. It now has fewer than half. In the mid-90s, the newspaper business began a slow steady decline that has accelerated in the last few years. About 3,000 newspaper employees have been laid off or offered buyouts within the first five months of this year, according to Bloomberg.

I share this experience so that I can ask you this question: If a highly productive young employee came into your office to give her two weeks’ notice, would you feel confident enough to reply: “You’re going to regret leaving the federal government”?

We’re in trouble, folks. There are more than twice as many federal employees 60 years and older than there are federal employees under 30 years old, according to FedScope data. That retirement tsunami never really hit, but darn if those big waves don’t keep lapping up on our shore. We need to bring in young talent to continue our agencies’ very important missions, many of which are at critical junctures. Yet, those agencies still haven’t figured out how to consistently hire young federal employees. There is also good reason to believe that they’re losing the ones they were able to hire.

The FedScope data is based on information as of September of 2018. It’s reasonable to think those figures will continue to get worse. Just look at what has happened since last September:

  • A highly politicized and soul-crushing 35-day shutdown that fell over the end-of-year holidays.
  • Multiple announcements from agencies planning to scale back their telework programs.
  • A member-less Merit Systems Protection Board. (And remember: The Board has lacked the quorum necessary to make decisions on cases for more than two years, leaving thousands of employees and their agencies in employment limbo.)
  • A proposal to dismantle the Office of Personnel Management, the agency responsible for federal workplace policy. (If you’d like a more positive take on OPM’s potential demise, my colleague Ann Boehm found a silver lining.)
  • Bills to extend probationary periods.
  • Proposed legislation that would basically make federal employees at-will, returning civil service to the spoils system.

The federal government is not looking like an ideal place to work.

What does this have to do with you, FELTG reader? A lot. As federal leaders, supervisors, HR professionals, and EEO specialists, you either manage people yourself or advise those who do.

Look at any survey of why people leave jobs and you’ll see poor performance management at the core. They may say “bad manager,” but it’s the same thing. Nothing drives a good performer to frustration more quickly than seeing a poor performer skating by. I know. I’ve watched it happen quite often in previous jobs. But don’t trust me. Just read any Federal Employee Viewpoint Survey over the last several years. There are way too many federal employees who think their managers are not holding bad employees accountable.

Behind those draconian bills in Congress and the wariness of young, talented job-seekers is the biggest and most damaging myth about federal employees: They can’t be fired. And there isn’t one iota of truth to that.

Are you one of those managers who cowers at the thought of accountability? Do you advise one of those managers? Well, you better learn how to hold employees accountable or get out of the way.

Anyone who has attended FELTG’s signature program UnCivil Servant: Holding Employees Accountable for Performance and Conduct or read the book (now in its 5th edition) can tell you how to remove an employee for unacceptable performance in 31 days. If you haven’t attended the training, scroll back and re-read the article by FELTG President Deborah Hopkins that leads off this month’s newsletter — We Don’t Need Civil Service Reform. Deb gives you the simple steps to address poor performance and misconduct. It doesn’t get any easier. Print the article, and be on the lookout this summer for the next two installments in Deb’s series. If you still need inspiration, then scroll back to the article – Ann Boehm’s Good News feature It’s Perfectly Legal to Talk to Your Employees — and it Can Net Results! There is a lot of wisdom in those two articles.

You should also find a way to get to our Managing Federal Employee Accountability next week in Portland, Ore., Barbara Haga’s Advanced Employee Relations class in Norfolk, Va., from September 10-12, or the three-day Developing and Defending Discipline: Holding Federal Employees Accountable, starting September 17 in Atlanta. You’ll leave each class with a lot of specific guidance on how to handle the accountability challenge.

Look, it can be done. Wouldn’t it be nice to hire and keep good talent? While we never want our talented employees to leave, wouldn’t it be great to be able to say to the departing worker, with a straight face: “You’re going to regret leaving the federal government.” Gephart@FELTG.com

And Now a Word With … Steve Shih

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Portrait of Steve Shih on Wednesday, Dec. 6, 2017 at NASA Headquarters in Washington, DC. Photo Credit: (NASA/Joel Kowsky)

By Dan Gephart, July 2, 2019

On Feb. 1, 2018, the National Aeronautics and Space Administration launched a workplace anti-harassment campaign. The campaign was based on the applicable federal laws, EEO guidance on anti-harassment, and the expertise of its creator – Steve Shih.

Shih is that rare person who can explain the fundamental principles and concepts of subjects like employment law and leadership, but is also creative enough to develop outside-the-box solutions. He has held critical roles over the past 25 years with the Equal Employment Opportunity Commission, the Office of Personnel Management, and the Department of Homeland Security. Shih has created agency- and government-wide policy and guidance for EEO, leadership, diversity and inclusion, training and development, employee engagement, and agency operations. He is currently Associate Administrator of Diversity and Equal Opportunity at NASA.

When Steve Shih talks, you listen. And we were listening when he discussed the agency’s anti-harassment campaign as being about “safety and effectiveness” of the workforce and the NASA mission. “We know if we take care of the workforce, they will take care of our mission,” Shih said.The campaign focuses on proactive prevention of harassment, and the prompt correction of harassment when it occurs. For prevention, the agency has gone to great lengths to get the message across – everything from meetings with agency leaders to 3-D simulations and gamification.

DG: What specific steps has NASA done to proactively prevent harassment?

SS: First, the NASA Administrator sent a video message and a written memorandum to every NASA employee, communicating:

  • Expectations for the appropriate culture and values in the NASA workplace.
  • Emphasis on accountability.
  • Reinforcement of the agency’s anti-harassment policy and requirements for all NASA personnel to exercise reasonable care to prevent and enable the prompt correction of workplace harassment.
  • Expectations for all personnel to support NASA’s Anti-Harassment Campaign.

I personally conducted briefings for all NASA senior leaders, including at the Administrator’s Senior Staff Meeting in February as well as briefings and trainings at NASA Headquarters and Field Centers across the country.

NASA has just developed and launched an innovative online training involving 3-D simulations, avatars, and gamification, focusing on harassment prevention and bystander intervention. The training is available to the entire NASA workforce, and is aligned specifically to NASA mission and to providing a value to NASA organizations and individuals on mission accomplishment.

NASA field centers and other organizations are also continuing additional efforts to proactively prevent harassment, including town halls, diversity and EEO programs, and partnerships with employee resources groups.

DG: We talked a lot about prevention, but can you briefly tell our readers how NASA effectively handles correction?

SS: NASA’s anti-harassment program is operated through a partnership of relevant NASA organizations and officials (including the agency’s Anti-Harassment Coordinators, the Office of Diversity and Equal Opportunity, the Office of the Chief Human Capital Officer, the Office of General Counsel, and senior management officials) who work together to review the fact-finding results of harassment matters and determine appropriate action.

These organizations and officials have both the leadership and program responsibilities and authorities to coordinate appropriate corrective measures when harassment occurs, including deciding and implementing discipline for employee misconduct, and driving organizational improvements (e.g., through training and improved operational policies and procedures).

This approach has enabled NASA to prioritize correction and continual prevention of harassment in a consistent, coordinated, and effective way across the entire agency.

DG: How do you measure the success of the anti-harassment program?

SS: NASA’s recent annual processing times for reports of harassment has averaged only 51 days from receipt to fact-finding to full resolution of reports of harassment, compared to the formal EEO process, which on average easily takes more than two years to fully complete.

We have data demonstrating employees’ increased capability to report harassment through any of multiple avenues and to multiple individuals who can arrange for assistance, including through our Anti-Harassment Program. Our data also indicate employees have experienced increased psychological safety and assurance of protection from retaliation, and these conditions have improved the confidence of employees to report and seek assistance for harassment.

I’m pleased to say NASA has maintained a very low volume of EEO complaints raising claims of harassment. Our data shows NASA’s Anti-Harassment Program has been extremely effective for early resolution of harassment matters so they don’t later become EEO complaints. In fact, during FY 2018, NASA received only 30 EEO complaints of harassment – this is a tremendously small number for an agency with about 17,500 civil servants and additional contract employees – and of these 30 EEO complaints, not a single one them raised a claim of sexual harassment.

Knock, Knock. Who’s There? The Efficiency of the Service.

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By Dan Gephart, June 12, 2019

Since Father’s Day is this Sunday, I think it’s probably the safest time for me to come clean about an embarrassing habit.

I tell Dad jokes. I mean, I tell Dad jokes a lot. My sons were barely teenagers before they developed an instinctive ability to recognize an incoming Dad joke before the words even left my mouth. And once they sense a Dad joke coming, they plead for me to reconsider:

Me: Speaking of Benji …

Son 1: Dad, we’re not talking about the dog anymore.

Me: It reminded me that I saw your friend’s dog yesterday.

Son 2: Don’t do this.

Me: You won’t believe it, I saw him doing magic.

Son 1: Please no. Dad,

Me: I guess we all know what breed he is now.

Son 2: Seriously Dad, I’m begging you.

Me: He’s a Labracadabrador.

Son 1, Son 2: (Groans that sound as if they’re dying.)

Years of grumbles, sighs, and finger wagging haven’t stopped me. A dad and his bad jokes are like the Golden State Warriors in the NBA Finals; they’re always there. While my Dad jokes may lack taste, humor, or a single redeeming quality, at least they are rather anodyne. Not so, however, for jokes with sexual implications, especially when they’re told in the federal workplace — even if they don’t rise to the level of hostile workplace or harassment.

Here’s an example: David Lang, a GS-14 Deputy Security Officer at the Department of the Treasury, wandered into a conference room where his colleagues were preparing for a meeting with VIP guests. The meeting had nothing to do with Lang’s job. There was no real reason for him to be there. However, some of the attendees had arrived early, so the meeting host, who was not ready, told the crowd they could ask Lang about security. The meeting host assumed Lang would talk about security issues.

He was wrong.

With no agenda or prepared material, Lang started to adlib, which led to a sexually suggestive anecdote about a drunk person in a police station. Lang acted out the story, specifically mimicking the drunk. As he neared the end of the story, his boss walked in. Lang looked directly at her as he continued with his joke. This MSPB initial decision (Lang v. Treasury, DA-0752-04-0442-I-1, (MSPB AJ 2005)) didn’t go into any further detail, but I imagine Lang’s boss giving him the same look I’ve seen on my sons’ faces. With his boss glaring at him, Lang paused, then continued to the punchline: “The drunk man looked down and said: ‘Oh no, they stole my girlfriend, too.’”

As the boss walked out, Lang told the audience: “Well, that was my boss, so be on the lookout for my resume.” Lang wasn’t terminated, but he was demoted to a GS-13. Of course, he appealed the demotion. In affirming the agency’s decision, the Merit Systems Protection Board administrative judge wrote:

“I find that the deciding official in this case properly considered the applicable Douglas factors and he adequately assessed the overall circumstances, including those that favored mitigation. He found that, under these circumstances, placing the appellant into a non-supervisory position with the least reduction in his pay was warranted and would best promote the efficiency of the service.”

Lang filed a petition for review, which the Board denied.

Inappropriate jokes also led to the demotion of the GS-13 Employee Relations specialist in Hatch v. Air Force, 40 MSPR 260 (1989). Hatch regularly told jokes with sexual connotations, often in meetings and, per the parlance of the day, “in mixed company.” The AJ found that the jokes adversely affected the efficiency of the service because of the number of subordinates who found them to be offensive.

The term “efficiency of the service” debuted in the Lloyd-La Follette Act of 1912, and was eventually folded into the Civil Rights Act of 1978. As long as there is a nexus between the misconduct and the federal job, the supervisor can take an action. It doesn’t matter that the actions don’t meet a legal definition of hostile work environment. As the Federal Circuit wrote in Carosella v. US Postal Service, 816 F.2d 638 (Fed. Cir. 1987):

“An employer is not required to tolerate the disruption and inefficiencies caused by a hostile workplace environment until the wrongdoer has so clearly violated the law that the victims are sure to prevail in a Title VII action.”

In 1994, the MSPB published a report on sexual harassment in the federal workplace, which clearly explained the costs of boorish behavior:

“Imagine an employee who’s being bothered by a coworker who leers at her or makes comments full of innuendo or double entendres, or who tells jokes that are simply inappropriate in a work setting. The time this employee spends worrying about the coworker, the time she spends confiding in her office mate about the latest off-color remark, the time she spends walking the long way to the photocopier to avoid passing his desk, is all time that sexual harassment steals from all of us who pay taxes.

Adding up those minutes and multiplying by weeks and months begins to paint a picture of how costly sexual harassment is. Increase this one individual’s lost time by the thousands of cases like this in a year, and the waste begins to look enormous. And this may well be a case that doesn’t even come close to being considered illegal discrimination by the courts. Whether or not they’re illegal, these situations are expensive.”

If you’re a supervisor who likes to tell jokes, think about your audience before you let the next one loose. And if you’re a supervisor of a Fed who fancies himself a cutting-edge comedian, take action before someone has to file an EEO claim.

I guess you could say that Dad jokes and inappropriate work jokes share one thing: Neither is a laughing matter. Gephart@FELTG.com

God Bless America and Charges That Avoid Intent

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By Dan Gephart, May 15, 2019

The Phillies were hitting the stuffing out of the ball, the Sixers were engaged in a physical playoff series with the Brooklyn Nets, and the Eagles were preparing for the NFL Draft. So when I turned on a Philadelphia sports radio station last month, I was shocked to hear fans talking about, um … Kate Smith.

The Songbird of the South was once a good luck charm for the Philadelphia Flyers hockey team. When Kate Smith sang “God Bless America” before games, the Flyers more likely than not won, especially during their back-to-back Stanley Cup seasons in the mid-1970s. Her final public performance was actually before a Flyers game — Game 2 of the 1985 Stanley Cup finals to be exact. Smith was so beloved that the Flyers organization built a statue of her outside their arena.

Kate Smith’s iconic mid-song figure was a fixture in South Philly for years, until the Flyers suddenly covered the statue last month. Days later, it was gone. The organization had “discovered” the racist lyrics to other tunes in the singer’s canon, songs like “Pickaninny Heaven” and the 1931 hit “That’s Why the Darkies Were Born.”  (It was actually the New York Yankees who first cut their connection to the deceased singer a day before the Flyers, announcing they would no longer play Smith’s version of “God Bless America” during the seventh inning stretch.)

Irate sports fans were shocked, and they called into sports radio stations en masse to share their displeasure with the Flyers’ decision. There were several arguments against removal of the Smith statue, but the one that took sway over most Smith supporters was that “Why the Darkies Were Born” wasn’t racist, but satirical. In other words, they argued, we didn’t understand Smith’s intent when she sang that song; she was making fun of racism.

Personally, I applauded the difficult decisions made by the Yankees and the Flyers. That said, there was something about the sports radio argument that struck a nerve. A decade-plus of hearing experts like William Wiley, Deborah Hopkins, and Barbara Haga teach disciplinary charges will make you wince when you hear an argument about intent.

If you’ve attended any FELTG training, whether as a federal HR professional, attorney, or supervisor, you know that it’s awfully hard to prove intent. Your decision to remove, suspend, or demote an employee could be the right one. However, using an intent-driven charge will unravel your case faster than Anthony Scaramucci’s tenure as White House Director of Communications.

The MSPB, in Boo v. Department of Homeland Security, made it clear: Whether intent has been proven must be resolved by considering the totality of the circumstances, including the appellant’s plausible explanation, if there is one. Basically, if the employee has a decent excuse, your charge is sunk.

Here are a few charges to avoid with case examples:

Falsification: The MSPB found that the Richard Leatherbury, an assistant operations manager, improperly submitted a claim for past overtime based entirely on an estimate, and that improperly indicated that the claim was based on a precise calculation of actual time worked. The board upheld the agency’s removal.

However, the Federal Circuit found that the employee’s good faith explanation in filing the travel expenses was disregarded. Areasonable good faith belief in the truth of a statement precludes a finding that the employee acted with deceptive intent. Leatherbury v. Army, 524 F.3d 1293 (Fed. Cir. 2008).

Insubordination: The agency claimed that registered nurse Irene Yetman’s failure to complete her work was evidence of insubordination. The administrative judge rejected these charges. Yetman’s intent was not to disobey orders. The orders were so onerous, she didn’t have time to complete them all. Yetman v. Department of the Army, 88 FMSR 5138 (MSPB 1988).

Theft: Cathryn Nazelrod, a correctional institute employee, admitted that she took $10 from an inmate’s envelope to buy herself lunch. Nazelrod put the $10 back into the inmate’s envelope the very next day. When the agency found out, it demoted Nazelrod on the charge of theft. Noting that the one of the elements of criminal theft was an intent to permanently deprive the owner of possession or use of the property, the MSPB concluded that the agency failed to prove the requisite intent because she returned the money. On appeal, the Federal Circuit agreed. King v. Nazelrod, 43 F.3d 663, 665-67 (Fed. Cir. 1994).

Taking a page out of the best-selling Eat This, Not That book, I share with you Charge This, Not That.

  • Charge Lack of Candor, not Falsification
  • Charge Failure to Follow Orders, not Insubordination
  • Charge Unauthorized Removal, not Theft

While I understand the Flyers’ decision to remove a statue of an artist whose successful career included racist songs, and I have made that case in the court of public opinion, I would not want to argue it before the MSPB. Gephart@FELTG.com

And Now a Word From … Mika Cross

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By Dan Gephart, April 16, 2019

Spurred on by the executive orders issued last year by President Trump, Health and Human Services resumed a once-stalled collective bargaining process with the National Treasury Employees Union. Those negotiations reached an impasse that resulted earlier this month in a Federal Service Impasses Panel ruling that could lead to HHS significantly rolling back its telework program, as well as policies on official time, office space, and leave.

For Labor Relations practitioners, this FSIP decision is a reminder of the power last May’s EOs has given them in the collective bargaining process. (Be sure to catch former FSIP Executive Director Joe Schimansky’s Significant Cases and Developments at the FLRA webinar on June 18).

For federal work/life experts, the FSIP’s decision created concern, but for a different reason. One of those alarmed work/life experts is Mika J. Cross, Federal Workplace Expert and VP of Employer Engagement and Strategic Initiatives at FlexJobs. Cross is worried not only about the impact of FSIP’s ruling on the nearly 20 percent of HHS employees who currently telework, but also on the government’s overall ability to recruit qualified young employees.

“Coming from a long career in public service, I know how very hard it is to even be able to attract the right candidates for open vacancies in government, let alone fill them in a timely and efficient manner,” Cross said. “The government at large already has a branding issue and coming off the heels of the latest shutdown, that’s not going to make the nation’s largest employer look any more appealing as a best place to work, especially for those younger workers getting ready to graduate this spring who are looking for the first step in their career.

“A cart blanche approach to restricting flexibility also restricts empowering first line managers and supervisors from making the best decisions for their workers,” Cross continued. “And studies show, year after year, the impact that work flexibility and remote work can have on productivity and performance. At this point, a move like this is laughable.”

If you’ve worked in the Federal government for even a little while, you know Mika Cross. The U.S. Army veteran and “Public Service Passionista” keeps very busy spreading the positive message of Workplace Transformation. You have likely watched her on Government Matters or seen her speak at a conference, or you may be one of her numerous followers on LinkedIn and Twitter (@Mika_Cross).

The most recent Federal Employee Viewpoint Survey (FEVS) offered some stark numbers about federal managers. Two examples: Only 28 percent of non-supervisory employees believe that steps are taken to deal with poor performers, and more than a third of employees believe that differences in work performance are not recognized in meaningful way. This seemed like a good place to start our conversation.

DG: What is the main message supervisors should learn from the most recent FEVS? 

MC: There is a very strong correlation between overall engagement and an employee’s propensity to stay in government. Those who indicated they intended to stay, are generally more engaged than their colleagues who aren’t. This will matter deeply in the coming year, especially when 27 percent of employees who took the FEVS, revealed they were planning to take another job (either within or outside of the Federal government) and 25 percent want to retire within the next five years.

OPM processed nearly 12,000 more federal retirements in 2018 compared to 2017, a five-year high, according to a Federal News Network analysis. If this continues to trend upwards, agencies could be faced with even more of a significant hurdle in mission operations.

DG:  What can front-line and second-line supervisors do to make their workplace more engaging and productive?

MC: Focus on organizational citizenship behaviors, meaning inspire, encourage, motivate and reward employees for their discretionary behavior and positive activities that help contribute to the overall welfare of the organization, and that go well beyond simple job duties and work requirements. Overall, supervisors can directly impact employee dedication, sense of purpose and their attachment to their mission and the organization.

DG: How do they do this? 

MC: Have a conversation, invite them to an interactive dialogue and check in regularly to learn how you can support your team’s personal and professional goals. Listening and responding to how Federal employees feel about their role within their organizations, and the work they do serving the American people, is something you can check in with them regularly about. No need to wait for the next FEVS cycle. You can:

  • Reinforce and explain the linkages between individual employee actions, workload, projects and activities to the organizational and business unit vision.
  • Re-design work to encourage more autonomy, creativity and innovation.
  • Enforce effective performance management practices that focus on early course correction, learning, growing and always strive to be supportive, not dismissive, or overly critical.
  • Offer and encourage using all the supportive employee and workplace resources that are available, such as onsite wellness programs, flexible work schedules, telework programs, employee advocacy and community affinity groups, financial literacy, continuing education and other workplace activities that help make your agency a better place to work, for all.
  • Encourage frequent and open communication with employees; model and reward appropriate co-worker relationships.

DG: How important is it that federal supervisors hold employees accountable and why?

MC: Although the five-year trend for FEVS responses, in general, indicates an uptick and continues to move in a positive direction, it’s clear that employee perception of performance management practices needs continued focus and attention. Some of the lowest scores came from questions dealing with the relationship between performance and rewards. If employees do not feel valued or acknowledged for a job well done, how do we imagine they will continue to feel dedicated and vested in the work they do every day?

Reinforce good behavior, ask your employees about the kinds of incentives that would be most meaningful to them, as they demonstrate quality and impactful work. You may be surprised to hear that an incentive for one employee may be a time off award, or ability to take a training course or attend a networking event during duty hours, rather than a monetary bonus; or additional flexibility in their work schedule or permission to telework more frequently; for others, taking on a new assignment or gaining permission to work on a project outside of their normal position description, may be a wonderful way to incentivize a job-well-done and inspire more creativity and innovation.

Gephart@FELTG.com

Fear the Mumps, Not the PIPs

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By Dan Gephart, April 10, 2019

Guess who made a long visit to my alma mater this year?

The Mumps. No, the obscure 1970s kitschy New York punk-pop band known for its outrageous live shows didn’t re-form for Temple University’s Spring Fling. I’m talking about the contagious, inflammation-spreading, gland-swelling, deafness-causing, we-already-had-it-eradicated mumps. And not just one or two mumps. There were more than 115 cases of the easily prevented virus on campus.

The anti-vaccination movement is as strong as ever. Meanwhile, the Flat Earth Society, which boasts thousands of dues-paying members, and climate change denial groups are just two of many thriving communities that take pride in turning their back on science, history, and, sometimes, facts.

Those of us who toil in and around the federal employment world know that we are not immune to overlooking the simple truth.

After all, that’s the only explanation for why there are still federal supervisors who would rather ignore poor performance than put an employee on a performance improvement plan, or as we now call it a FELTG – the demonstration period (DP).

Folks, this ain’t rocket science. This ain’t even whatever science makes those volcanoes erupt baking soda at junior high school science fairs.

The DP – or PIP, if you still call it that, or the ODAP, OP, or DO – is not even an adverse action that would render an employee aggrieved. It’s just a preliminary step to taking a personnel action. Lopez v. Agriculture, EEOC No. 01A04897 (2000), Jackson v. CIA, EEOC No. 059311779 (1994).

For this article, we’re focusing on this preliminary step that too many supervisors fear. Let’s assume that your agency has established critical elements under an OPM-approved plan, and that you have communicated those critical elements to the employee. And now, the employee is failing to meet those on one or more of those elements. Do NOT ignore the poor performance. Just follow these three steps:

Step one: Notify the employee. In a letter or email, identify the critical element, or elements, at issue, and explain to the employee that his performance is at the unacceptable level. Reiterate, based on the performance plan, what exactly warrants a rating of unacceptable. Go ahead and attach that employee performance plan.

Inform the employee that you are putting him on a performance improvement plan (or, again, whatever your agency calls this “opportunity” period), and that if he fails to raise his level of performance during the DP, you will initiate the steps that will lead to his removal. Identify specifically when the DP begins and ends. Clearly define for the employee what you will consider the “minimum retention level.”

Step two: Conduct the DP – and limit it to 30 days. There is no reason for a DP to go longer than 30 days. The MSPB has consistently affirmed that a 30-day DP satisfies an agency’s obligation to provide an employee with a reasonable opportunity to demonstrate acceptable performance. Lee v. EPA, 2010 MSPB 240; Towne v. Air Force, 2013 MSPB 81. In previous rulings, the Board has found that a DP as short as 17 days is OK. Bare v. DHHS, 30 MSPR 684 (1986). But don’t get too aggressive. Three days is not enough time, according to the Board. Hailey v. Agriculture, 26 MSPR 114 (1985).

And remember those Executive Orders President Trump issued last year? Well one of them requires agencies to limit the performance demonstration period “generally” to no more than 30 days.

As for conducting the DP, FELTG suggests you:

  • Meet weekly with the employee.
  • Give oral constructive criticism relative to the week’s work and the week’s assignments.
  • Follow up with an email to the employee that day or the next. Restate the criticism, make assignments for the next week, and send a copy of the email to your advisor.

Step three: Make your decision. Has the employee met that “minimum retention level” that you defined in your notification letter? If so, issue a performance warning letter. In that letter, inform the employee that you will still take steps to initiate a removal if the employee’s performance dips back to unacceptable within a year of the first day of the DP.

If the employee fails the DP, then you have three options. You can reassign the employee, offer last rites, or proposal the removal. There is a time, place, and reason for all three of these options, and you can find out more from FELTG President Deborah Hopkins and Bill Wiley, FELTG Professor Emeritus when FELTG hosts MPSB Law Week in Dallas from June 3-7.

But for now, I need to leave. I have a doctor’s appointment, and those leeches aren’t going to attach themselves. Gephart@FELTG.com

And Now a Word From … Susan Tsui Grundmann

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March 19, 2019

When former Merit Systems Protection Board Chair Susan Tsui Grundmann started her new job as Executive Director of the Office of Compliance, quite a few people didn’t know what the OOC was, or what it did.

That soon changed.

Grundmann barely had enough time to learn the best spot for coffee near the Capitol before the OOC found itself in the spotlight. The #MeToo Movement had broken out, and Congress was not immune to claims of sexual harassment. The OOC, which operates with a staff of attorneys and other professionals to ensure a fair, safe, and accessible workplace for 30,000 legislative branch employees, was suddenly very busy – and getting a lot of attention.

“During a five-month period, our tiny staff had been tested, weighed and found not to be lacking,” Grundmann said. “Since October 2017, our staff personally trained over 1,500 employees in the House and Senate alone, not all at once, but in ones, twos, and tens.”

And it’s no longer the Office of Compliance. The agency has since rebranded itself as the Office of Congressional Workplace Rights. Along with the new name, the OCWR received new mission and vision statements after the Congressional Accountability Act Reform Act was passed late last year and goes into effect in June. Per Grundmann, it “serves as the EEOC and the FLRA for the legislative branch. We also perform certain functions of the Department of Labor and the Department of Justice for the legislative community.”

Here’s more from our interview.

DG: New name, new mission and new vision statement. How else has the office changed?

SG: Our jurisdiction has been expanded to cover new employing offices, like certain congressional commissions, and additional categories of employees, such as unpaid staff, including interns, fellows, and detailees. Our ADR process no longer includes mandatory counseling, a mandatory “cooling off” period before the employee can proceed either to an ADR hearing or court, and mandatory mediation, although mediation remains optional if both parties agree. We have a new step in the ADR process, which involves preliminary review by a hearing officer within 30 days after a claim is filed.

All employing offices have new posting and training requirements. For the first time ever, we will conduct a climate survey of the entire legislative branch with specific focus on respondents’ attitudes toward sexual harassment. We also have new reporting requirements. Perhaps what has captured the greatest media attention is that Members of Congress and employing offices must reimburse the treasury account for certain types of awards and settlements.

DG: So what hasn’t changed?

SG: The Reform Act maintains the OCWR’s essential functions and preserves our statutory mandates, which include statutory directive to provide an ADR process for legislative branch employees; to enforce the Occupational Safety and Health Act, Americans with Disabilities Act with regard to public accessibility, and the Federal Services Labor-Management Relations Act; to provide recommendations to Congress regarding changes to the CAA; and to educate and inform the legislative community and the public regarding the CAA and the Reform Act. Perhaps most importantly, the Reform Act maintains the impartial, non-partisan nature of our Office.

DG: How are you able to handle all the added responsibilities with such a small staff?

SG: While we have been allotted additional FTE and funding, we have a great team at OCWR.  We have identified statutory changes which require action and have in-house teams with timelines and deadlines, the most significant of which is to amend our current rules to reflect changes mandated in the Reform Act, such as adding the new step of the preliminary review by a hearing officer in the first 30 days.  We even have a single individual whose primary task is to keep track of every team, note every benchmark, and to ensure that we adhere to every deadline.  The limited timeframe is a challenge yet it is an exciting time for us as we have been given the rare opportunity to create a new structure and process.  We are looking forward to meeting this challenge.

DG: You were charged with providing widespread training on harassment to Congress. Through this process, did you have any revelations on harassment training?

SG: We saw a triple-digit percent increase in the number of requests for in-person anti-sexual harassment training; a triple-digit percent spike in the number of staffers enrolling in our online training modules; twice as many visits to the OCWR’s online information about how to report sexual harassment; a 12 percent surge in the number of people subscribing to OCWR social media platforms to receive updates on rights and responsibilities designed to protect workers against sexual harassment. And posters notifying employees of their rights under the CAA, which were, at the time, non-mandatory in the legislative branch, flying off our shelf.

DG: What do you think agencies in the Executive branch could or should do differently to get a handle on widespread harassment?  

SG: Training is only the floor. But running the same training over and over again cannot change culture. To remain relevant and fresh, training must be continually revised and tailored to the specific environment of each workplace. We have found that in-person training works the best, especially if we work directly with the employing office and develop scenarios that commonly occur in a particular office. 

There are other steps employers could take: Develop a zero-tolerance policy prohibiting discrimination, harassment, and retaliation that employees know and understand. That policy should describe procedures for reporting such behavior and designate a particular individual, and an alternative in the event the designee is the accused, who is charged with receiving complaints and providing a timely investigation of the allegations. Even if the allegations prove unfounded, the designee should contact the employee so that the employee will know that the claims were taken seriously and not brushed aside. If the allegations have merit, the accused must be given due process and held accountable. In the end, cultural change comes from the top, from both executive and senior leadership, and from management, who adopt and implement the organizational mission and vision.

DG: Hopefully, we’ll have a quorum soon at the MSPB. Do you have any advice for new MSPB members?

SG: Not having a quorum for over two years has done substantial damage to the MSPB’s ability to reach resolution and closure. Almost 2,000 PFRs await resolution. That number is certain to grow. In some cases, justice delayed can be viewed as justice denied. You have seen these stories in the media.

My advice to new members is to trust your instincts but be guided by the exemplary career staff at MSPB. There are many, many talented employees who have dedicated their careers to protecting and advancing the merit principles. Many have seen it all and know what works and doesn’t work in the long run. Be inclusive when it comes informational gathering, including external stakeholders. To the extent possible, be inclusive of decision-making so that there is a shared ownership of choices made. It is a great agency filled with those who model the merit principles in their ever day life. I wish the new Board members the best as they embark on this venture. They will garner great experience and satisfaction from their time with the agency.

Work Now, Grieve Later, and Avoid Having to Testify Before Congress

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By Dan Gephart, March 13, 2019

Two weeks ago, nearly 16 million people watched Michael Cohen tell the House Oversight Committee about the many illegal, unethical, disreputable, and downright nasty things that he did at his boss’s direction.

Whether you believe the president’s former attorney or not, I’m sure you think that you would, as Spike Lee says, do the right thing if your boss asked you to do something wrong. Heck, I know I would. And no psychology text book or Stanley Milgram experiment is going to change my mind.

This got me thinking about orders disobeyed and generally ignored in the federal workplace. Years of reading MSPB decisions involving charges of insubordination and failure to follow orders leaves me thinking the federal workplace’s problem is different than the one faced by the former Trump Organization lawyer. There are some federal employees, it seems, just looking for a reason — any reason — to ignore their supervisors’ orders.

That’s why every federal employee needs to know what “work now, grieve later” means, especially that first tenet – work now. The employee must follow the supervisor’s order. If not, that employee should be disciplined.

“[A]n employee does not have the unfettered right to disregard an order merely because there is substantial reason to believe that the order is not proper; he must first comply with the order and then register his complaint or grievance, except in certain limited circumstances where obedience would place the employee in a clearly dangerous situation.” Taylor v. HHS, 40 MSPB 106 (1989), citing Gragg v. US Air Force, 13 MSPB 296 (1982).

Ah, the exception. An employee does not have to follow an order that would cause him “irreparable harm.” That would mean orders that are:

  • Illegal, whether the order itself is illegal, or obeying the order would be an illegal act.
  • Unsafe.
  • Immoral.
  • An unwarranted psychiatric examination.

An order can also be rejected if it foregoes a Constitutional right.

But let’s be honest here: When we’re talking about orders that cause irreparable harm, we’re talking a miniscule number of cases. The percentage of orders that would fit into the irreparable harm category are so far to the right of the decimal point, they make pi look like a number Count von Count would rattle off on Sesame Street. It’s more likely that an employee would think the supervisor’s order was wasteful, or argue the order falls outside his position description. And in those cases, it’s simple: Work now, grieve later.

Oh wait. We nearly forgot about the Follow the Rules Act, which Congress sneaked through and the president signed in June of 2017. Yes loyal readers, that’s the bill that FELTG Professor Emeritus and Former President Bill Wiley wrote could create a “hellscape scenario” for the federal workplace if passed. Well, it did pass without much fanfare.

The Follow the Rules Act extends whistleblower protections to federal employees who refuse to obey a direct order that would violate a rule or regulation, whereas previous protections extended only to those refusing an order that would violate a law. Bill wrote about a confused employee who thinks she’s being ordered to violate a rule or regulation:

Well, what if it turns out she is wrong? What if her honest belief about what the order meant was simply mistaken? If she is fired for insubordination, if on appeal her argument that the order violated a rule is not affirmed, she has effectively bet her job that her interpretation was correct at the moment she chose to be insubordinate. Why in the world would we want to entice federal employees into this high-risk gamble with their livelihood when there are other ways to protect them from abuse?

It’s a clear no-win situation. It’s something you want to avoid, just like the anarchy that comes from a workforce that disregards supervisors’ orders. That said, if you have a supervisor who has no fear of ordering an employee to something illegal, unsafe, or immoral, then you’re going to be watching someone from your agency testify before Congress while millions watch. Gephart@FELTG.com

Collect Call for Misuse of Technology: Do You Accept the Charges?

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By Dan Gephart, February 13, 2019

In these highly partisan times, I think there is one thing we can all agree on,whether your politics lean left or point right, and that unifier is this: Geico makes the best commercials. Right?

(Disclaimer: I’m not a Geico customer. However, there may be a picture of me with a large gecko taken in a previous life).

One of my favorite Geico commercials is “Collect Call.” That’s the one where a brand new parent, hoping to save a few coins asnew parents are wont to do, makes a collect call from the hospital to a relative. He tells the operator: “Collect call. First name: Bob. Last name: Wehadababyitsaboy.” The relatives immediately reject the collect call. They don’t need to pay the phone company to know that Bob’s wife had the baby and it’s a boy.

Let’s call this action, a variation of which many of us of a certain age used to communicate to our parents in our teen-aged days, what it really is: Misuse of technology.

It’s almost as if some humans are always going to find a way to use the technology in a way for which it wasn’t created, whether it’s telephones or computers or tiny telephones that mostly serve as computers.

We all know tech misuse is a big problem in the federal workplace. And much like our collect caller, some federal employees have gotten pretty creative in their misuse of technology. Despite what the shock headlines tell you, it’s not all about porn.

Register for Barbara Haga’s upcoming webinar Tsk Tsk Tech: Computer-related Misconduct in the Federal Workplace on February 26 and you’ll hear the following non-pornographic examples, and many more.

There’s the VA housekeeper’s aide, who used his government computer to send promotional emails about the handbags and DVDs he was selling. His removal charges included inappropriate use of an agency computer. But removal was the least of his problems. He was criminally charged for trafficking in counterfeit goods. You didn’t really think that Gucci had three c’s, did you?

Then there was the EPA attorney-advisor who was removed for using his government computer to do his outside legal and real estate work. His excuse that he was mostly replying to emails? That didn’t really stick.

My favorites usually involve social media, and few beat the nurse who posted the following comments on her Facebook page:

• Just realized I never see my head nurse and Satan in the same place. Hmmmmm?????

• Off to work like a dog, for pennies, in unsafe conditions, being exposed to diseases and body fluids … no, not a third world country … I’M A VA NURSE.

The nurse, who also referred to her coworkers as d—heads, liars, and b—— in Facebook posts, was suspended for 14 days, although an arbitrator later mitigated it to 5 days. [Hopkins note: we only used the dashes so your firewall wouldn’t filter our newsletter as junk mail. If you need to know what grown-up words the employee used, email us. J]

The range of misuse is wide, and how you choose to handle it will depend on the type of misuse. Was the employee’s misconduct criminal? Did it violate the Hatch Act? Did it disrupt the workplace? Did it interfere with agency work? Did it involve harassment? What agency policies were violated?

The key to finding the right discipline is to not be overwhelmed, and to approach your actions in a strategic, knowledgeable, and efficient way – the FELTG-Way© as we like to say here. And I can’t think of a better start than Barbara’s webinar later this month.