Posts

5 Suggestions for Hiring the Right Person

, ,

By Dan Gephart, October 20, 2021

Here at FELTG, we often get inquiries from HR professionals and supervisors wondering what they can do about their poor-performing and/or misbehaving employees. By the time someone seeks our guidance, the employee has already created havoc and damaged morale or, at the very least, lowered productivity.

As any regular FELTG customer or reader knows, that’s our bailiwick, and we can help you take the steps necessary to rid your agency of the problem.

If you listened to the press and certain politicians, you’d think all these employees were bad people. But that’s not the case. Many times, employees struggle with performance issues (and sometimes conduct) because they are poor fits for the job. And that often goes back to the hiring manager.

Look, we all know hiring someone into the Federal workforce can be a long and patience-trying process. And we know that if you’re in the market for a new employee, you’re likely short-staffed and working hard to pick up the slack. You probably feel like you don’t have enough time or energy to focus your full attention on the hiring process.

Who knows, maybe you get lucky and hire a star. But more likely, failure to go all in on the hiring process will probably result in you reaching out to FELTG within a few years to ask us how to handle your “problem employee.”

Even more importantly, President Biden has issued Executive Orders that charge you with  promoting diversity, especially among traditionally underserved populations. In the most recent Federal Employee Viewpoint Survey, 79 percent of employees agreed that their supervisor was committed to a workforce representative of all segments of society. That’s a solid C+. Let’s just say that there is a lot of room for improvement.

Here are 5 tips to help you navigate the hiring process successfully:

1 – Prepare. If you’re just going through the motions to get to the interview, you are miscalculating greatly. As Barbara Haga will explain in her December 7 virtual training Successful Hiring: Effective Techniques for Interviewing and Reference Checking, “the time invested in preparation pays huge dividends.” The pre-interview part of the hiring process includes writing the position description and job announcement and preparing interview questions.

Skipping over any of these parts will come back to haunt you at some point. So closely review the job description to ensure it’s up to date, and that all the duties and functions are specified, and the required skills and abilities are included. Make sure the job announcement gives a full and accurate description of the job. Nobody should be surprised about the job they’re taking on. Also, the major duties and responsibilities should match the essential functions of the job, which should be measured by critical elements. Doing this now will help you later. 

2 – Make sure your selection criteria is job-related. Once you get to the candidates with the minimum qualifications, it’s onto the selection criteria. These criteria are often unique to the specific position and will be key to selecting the most-qualified candidate.

Ensure your selection criteria is equally applied to all job candidates and beware of the subjective. It’s OK to be subjective. In fact, it’s often necessary. But if the criteria is not job-related, you could be on shaky ground. For example, in Varley v. Attorney General, EEOC Appeal No. 01972338 (1998), the agency selected a polygraph examiner based on his “people skills.” But these skills were not in the guidelines. Good judgment, self-motivation and – get this folks — ability to work well alone were in the guidelines. People skills should not be a consideration for someone who works alone.

Applying subjectivity to criteria that is not strongly job-related could lead to discriminatory decisions, which leads us to our next tip.

3 – Beware what you ask. You’re going to ask a lot of questions before you know if you have the right person. But those questions should only be asked if they are providing information “essential for determining if a person is qualified for the job.”

Agencies can get into trouble when requesting information that touches on protected categories. Those categories are race, color, national origin, religion, sex, and reprisal/retaliation, age, genetic information, and disability. Not only should you not ask about these categories directly, be careful that your questions don’t indirectly elicit answers that you give information about protected categories. Read the next article by Michael Rhoads for more on this topic. And join Katherine Atkinson on October 26 for a half-day virtual training on Nondiscriminatory Hiring in the Federal Workplace.

4 – Avoid the first impression trap. Three years ago, I wrote about a brand-new professional sports mascot whose introduction to the public went completely haywire. The initial reaction to Gritty’s first press conference was so incredibly negative, it’s hard to believe that the Philadelphia Flyers’ furball made it to a second day. But he did. And, as I noted in the article, he started to grow on people. I mean that positively, not in a “I have a rash that won’t go away” way.

First impressions are formed within milliseconds and are based heavily on our biases. Relying on that “initial gut feeling” will lead to poor hiring decisions as well as a staff that looks and thinks a lot like you.

By the way, Gritty has come a long way in the last three years. The one-time laughingstock is now one of the most recognized and popular mascots in all of professional sports. In fact, Business Insider Magazine recently ranked Gritty the top professional mascot out of 110 in American professional sports leagues, a spot ahead of his neighbor the Phillie Phanatic. Sadly, mascots are all us Philly fans have to cheer these days.

5 – Make effective use of the probationary period. During the probationary period, the employee’s MSPB appeal rights are limited. Consider those first 12 months, depending on the position, as part of the hiring process. Most employees will be on their best behavior when they start a new job. If, during that probationary period, it becomes clear to you that the employee is not able to do the job, remove the person. It’s that simple and it’s only fair to you, the employee and the team.

Oh, and one final bonus suggestion. If you do not have DEIA on your mind as you’re making these hires, then you’ve made a big mistake. DEIA – diversity, equity, inclusion, and accessibility – is a major component of President Biden’s Executive Orders, which charge agencies with making the Federal workplace look more like America. So, if your applicant pool is looking like it’s always looked, then it’s time for you to find new places to recruit. As FELTG Instructor Marcus Hill told virtual attendees earlier this year, it’s time to “go where the candidates are.” Consider social media and online forums. Visit colleges and universities that haven’t been a part of your usual search and include technical schools if you haven’t already. Have you looked at community programs or non-profit organizations as sources for recruits?

And you can just ignore this advice. Then I’ll expect to hear from you in a couple of years. Gephart@FELTG.com

Well, Excu-u-use Me! Sometimes, Feds Say the Darndest Things

, ,

By Dan Gephart, September 14, 2021

Ever hear about the Federal employee who walked out of Whole Foods without paying for the two tacos in his hands? When stopped by security, he claimed he “thought the tacos were comped for Federal employees.”

Or how about the Fed who paid for his family’s entire Disney vacation with his government credit card? It was an accident, he said. He meant to use his own card. Yes, sure, it was an accident when he paid for the flight. And again, when he paid for the hotel. And again, when he paid for the rental car.

But what if the taco-buying Fed really did think he was comped? I don’t know, maybe he missed his day of ethics training. Or what if the Disney vacationer’s personal credit card looked almost identical to his government card?

Sometimes an employee’s excuse for misconduct may sound as illogical as the concept to the Broadway show Cats. Before you laugh off the premise, though, give it some consideration. After all, the MSPB once reversed an employee’s removal for failing a drug test when his excuse was that his soon-to-be-ex-wife laced his cigar with marijuana. The ol’ “my wife put weed in my cigar” excuse? Come on! That sounds like our drug-tested Fed was blowing smoke. But guess what? The evidence backed it up. After lacing the cigar, the wife called the employee’s supervisor and suggested her husband be drug-tested.

That evidence, however, was clearly missing for the IT specialist in Hansen v. DHS, No. 2017-2584 (Fed. Cir. Dec. 28, 2018). A random drug test revealed marijuana in his system and the agency proposed his removal for “positive test for illegal drug use— marijuana.”

The appellant claimed he unknowingly consumed drug-laced brownies at a party. Who hosted the party and secretly served pot brownies to unsuspecting guests? Well, the appellant didn’t actually “know” the host. In fact, he claimed, he didn’t even know the brownies were made with marijuana until days later. He said he never felt the effects of the marijuana and attributed what he did feel (mostly nauseous) to eating bratwurst.

The MSPB found that he failed to meet his burden of “showing such inadvertent ingestion” and affirmed his removal.

For more on Hansen and other similar cases, join FELTG President Deborah Hopkins, starting at 9:30 am ET on Thursday, September 30 for High Times and Misdemeanors: Weed and the Federal Workplace. If you’re looking for guidance on handling off-duty misbehavior in general, join FELTG Instructor Bob Woods for Got Nexus? Accountability for Off-duty Conduct on Tuesday, September 28, starting at 11:15 am ET.  Both sessions are part of our Federal Workplace 2021: Accountability, Challenges and Trends event, which runs event runs September 27-October 1. Click here to find out more about this exciting annual event. Gephart@FELTG.com

And Now a Word With … Ambassador Gina Abercrombie-Winstanley

, ,

By Dan Gephart, August 23, 2021

A year ago, the concept of “diversity training” was as welcome in the Federal workplace as a squirrel at a dog park.

But it’s now been almost seven months since President Joe Biden took office and immediately issued two Executive Orders aimed not just at bringing back diversity training, but also at improving the diversity, equity, inclusion, and accessibility of the Federal workplace – and the customers it serves.

This sudden about-face has left many agencies scrambling to figure out how to meet the goals laid out in those two Executive Orders, as well as the third diversity-related EO issued a couple months later.

We reached out to Ambassador Gina Abercrombie-Winstanley, who was recently named the first Chief Diversity and Inclusion Officer at the US Department of State. Ambassador Abercrombie-Winstanley’s 30-year diplomatic career includes stints advising the Commander of U.S. cyber forces on our foreign policy priorities, expanding State’s counterterrorism partners and programs, and coordinating the largest evacuation of American citizens from a war zone since WWII. She remains the longest serving U.S. Ambassador to the Republic of Malta.

Ambassador Abercrombie-Winstanley is not opposed to taking on another difficult challenge. After all, State is sometimes derided as too “male, pale and Yale.” Ambassador Abercrombie-Winstanley’s focus early on in her tenure as Chief Diversity and Inclusion Officers has been on getting the right data and finding the barriers to diversity.

DG: Everyone seems to have different definitions of diversity and/or inclusion. How do you define the terms?

GA: Diversity, of course, is a nice broad term that can mean any number of things. Our focus is on those who are underrepresented in the Department of State and part of protected classes as EEO lays them out. It’s a pretty specific definition on the one hand with how we’re going to be judged. In the department, we include a wide variety of aspects of human beings – backgrounds, perspectives, lived experiences brought about by visible differences, that is how we would define the diversity aspect of it.

The inclusion part and the accessibility part aren’t ensuring that everyone reaches same destination or same level because that’s impossible, but that everyone has ability to reach their potential within our organization. What we want not to do is waste talent. We don’t want to waste the money we spend on training, or on fellowships for people to join the State Department. The money from our budget is taxpayer money. If people are feeling stymied, unfairly disadvantaged, or discriminated against or dis-included, you’re wasting the talent, the resources. Our job is to make sure we make measurable improvements in those areas.

DG: What is your top priority or first goal as Chief Diversity and Inclusion Officer?

GA: Two things we started doing my first day as secretary were communication and messaging. We have talked about (the value of diversity) a long time, and there’s a high level of skepticism in our organization. Why is this going to be any different than last time? We have to combine not only giving the message in a consistent, clear, and measurable way, but we also have to build the trust. Building the trust means listen to what we say and watch what we do.

To measure our accomplishments, we have to know where we are right now. We have done some work. One of my colleagues said “Gina, nothing but the hard stuff left for you.” You have to get that baseline, as everybody knows.

We are grappling with the numbers. Many don’t self-report. We want to know why (they) didn’t. There are several reasons, (such as) they thought it wouldn’t make a difference. But that information goes into how much money we give, how much effort we give, and how much success we will have.

DG: In your experience, what are the challenges faced by members of historically underrepresented groups within the State Department?

GA: I hosted an extraordinary roundtable yesterday on the anniversary of the ADA — me interviewing four employees, two posted overseas and two domestic, who have disabilities of various sorts. They talked about what works, what has been helpful from managers and supervisors, and what can we do to ensure their inclusion and their success. I was taking notes as furiously as anyone at that table.

Of our four panelists, only two had self-identified themselves. I’m sure both will go in and do it in short order. We need people to understand that the data on race, gender, sexual orientation, disability that we need to collect … none of that is connected to names. It’s anonymous data. What percentage we have. It doesn’t come with names, just the categories of the protected classes.

People say, “I don’t want to identify, maybe someone will discriminate against me.” And then I talk about the intersectionality of it, that we are responsible for each other. There are women and people of color who can’t hide it. We need to demand our organization value us for who we are.”

DG: Is it harder to do this job being the first person to hold the title, or do you think that it provides you freedom in that you’re not beholden to doing things a certain way?

GA: I have to spend time building. I hope we don’t have to pass the baton too many times. Our plan is to make our changes systemic. It’s just how we do business. I’m the first diversity and inclusion officer, but the department has made some changes over time. Work has been done in different smaller subtexts. Our Office of Civil Rights has done work. We’re trying to consolidate some of that, so we’re not reinventing the wheel here.

We really have to scrub those numbers, get that data. Whatever we do in this organization is going to be data-based. We have a lot of anecdotal evidence, but I want black and white. We have women not getting to senior positions. We have 87 percent of European Americans in leadership positions – a proportion that does not reflect the ability of everyone within the organization. Why does that happen? What are the choke points?

We have to identify what the barriers are, determine whether we’re asking the wrong questions, or is something wrong with how we advertised the position. Barrier analysis is a major tool in what we have to get after. A little of that has been done already, but my office intends to do it in a robust fashion.

DG: Is there a measure or mark by which you will judge your success? In other words, what will success look and feel like to you once the State Department’s diversity and inclusion goals have been met?

GA: The long-term goal — no quotas, no numerical target, per se. Our organizations should look like America, but it’s very clear we’re not near that. We must make sure that we have everything in place so that if people enter in this career and they have the ability to do this career and they have the willingness to do this hard work because being a diplomat is hard work, but very gratifying … if people are willing to give themselves to public service, it’s incumbent on us to get the unnecessary barriers out of their way. And that’s what we’ll look at as success. Gephart@FELTG.com

FELTG Instructor Marcus Hill contributed to this article.

Averting Retaliation: Fear is OK, but Don’t Act on Anger

, ,

By Dan Gephart, August 18, 2021

I remember very little about second grade, but I can vividly recall sitting in class when my fellow classmate Teresa C. tapped me on the shoulder and very matter-of-factly said, “I know you did it.”

“Did what?” I replied.

“You murdered my father,” she said, “and I’m going to tell the teacher.”

Thanks to Catholic guilt, already deeply ingrained in me at seven years old, my first thought was: When did I do this horrible thing? I eventually realized the claim was ludicrous. I mean, my parents still weren’t letting me cross the avenue by myself. How the heck could I pull off a murder without leaving my side of Fitler Street? Yet, I was certain the teacher would believe Teresa and the police would storm into Room 202 (yes, that really was my second-grade classroom) at any moment. I was terrified.

Fear is a common reaction when an individual feels they’ve been unfairly accused, particularly if they have a lot to lose, such as a job or the respect of peers. Perceived injustice creates psychological discomfort – and the person instinctively tries to find a way out of that discomfort.

I never found a way out of my second-grade discomfort. I spent the next couple of days terrified that the police were going show up at school or my house and take me away. But then again, I was just a seven-year-old kid. For an adult supervisor in the Federal workplace, there is a more common, easier path out of the discomfort. And that’s anger. Unfortunately, while anger may make help you forget your pain for the moment, if can also lead to retaliation when unchecked, especially if:

  • The accusation is very serious.
  • The accusation will negatively impact relationships with others at work.
  • The accused feels that he/she/they are being judged.
  • The accused believes his/her/their job is in jeopardy.

It’s no surprise then that retaliation is asserted in almost 45 percent of EEO complaints, or that findings of discrimination based on retaliation comprised between 42 and 53 percent of all findings from 2009 to 2015. And in many of those findings of retaliation, the original claim under which the complaint was filed was dismissed.

It’s so counter-intuitive, but if you’re named in an EEO complaint — even if you are certain you are wrongly accused — you must find a way to deal with your anger. The other thing you can and, quite frankly, should do is be aware of what retaliation looks like so you know exactly what to avoid. For example, never publicly discuss EEO complaints, don’t make jokes about EEO, and don’t try to isolate the complainant. All of these actions have led to findings of discrimination on the basis of retaliation.

To learn more, join Attorney Meghan Droste on August 24, for the 60-minute webinar EEO Reprisal, Handle It, Don’t Fear It. In this the penultimate session in our Supervising Federal Employees webinar series, Meghan will discuss specific cases involving retaliation and provide you with several steps you can take to ensure you avoid retaliation. Reprisal will also be discussed along with intentional discrimination and contractor complaints during Day three of FELTG’s EEOC Law Week September 20-24.

After a couple of days, I began forgetting to worry about my imminent arrest. When I eventually told my parents, they laughed. Oh, and before Teresa C. transferred to another school a couple of years later, I became aware that her father was very much alive. Gephart@FELTG.com

And Now a Word With … FedUpward Podcaster Love Rutledge

,

By Dan Gephart, August 3, 2021

It’s unanimous here at FELTG. The headquarters team and our instructors are beyond tired of hearing the hackneyed tropes about bad Federal employees running amok. That’s why we teach courses like our flagship UnCivil Servant: Holding Employees Accountable for Performance and Conduct, so that you can take direct action against the few misbehaving and poor-performing Feds who ruin the reputations of everyone else.

Federal employee Love Rutledge is also fed up with the “caricature.”

“We’re either lazy, dumb, and couldn’t find better jobs elsewhere; or we’re scheming deep-staters who plot to take down certain segments of the population,” she said. “Obviously, we’re neither. Most Federal employees work hard, serve the public and do the best they can every day.”

Love was so incensed with this mischaracterization she had to do something about it. She launched FedUpward, a podcast where Federal civil servants can find “inspiration, motivation and practical tips.” She dropped her first podcast in October 2019 and just surpassed the 100-episode mark last month. Recent podcast episodes have included interviews with FELTG President Deborah Hopkins (Performance Management and the Santos vs. NASA Ruling) and FELTG instructors Katherine Atkinson (Can My Manager Ask Me THAT When I Return to the Office), Marcus Hill (Network with Senior Executives and Work on Government’s Big Challenges) and Shana Palmieri (How Feds Can Maintain Mental Health and Help Others).

Finding free time isn’t easy for Love. She’s also a full-time Federal employee and the mother of two young children. But she took some time answer a few FELTG questions.

DG: What’s the best piece of advice for Feds you’ve learned over your 100-plus episodes?

LR: There’s rarely a challenge a Federal employee faces that hasn’t been faced by others. The more we collaborate across agency and department lines, the more efficient we can be.

DG: What is something you learned via your podcast that really surprised, saddened, or angered you?

LR: I’ve had several Feds reach out to me who’ve experienced truly toxic managers, retaliation for reporting bad behavior, and full-on discrimination. Those are the more frustrating messages I get. We cannot attract and retain talented public servants while treating folks badly.

DG: How was your work life changed by the pandemic?

LR: As a parent to two young children, the pandemic has been absolutely brutal. My husband and I are fortunate to have resources that gave us options, but few good options existed for childcare over the last year plus. Mama is TIRED. I think many Fed parents can relate to the sense of exhaustion and lack of control that we’ve faced during the COVID crisis. And we’re still facing it. For those of us with children under 12, our options for activities and childcare remain quite limited. I doubt you can find any parents who say they had a good work/life balance over the last 16 or so months.

DG: What should agencies do to improve the overall morale of their workforce? 

LR: Everyone wants to feel appreciated for what they do. Truly listening to employees to understand their concerns, supporting their growth, and providing flexibility where possibleall go a long way toward employee engagement and satisfaction.

DG: Say someone is reading about your podcast here for the first time. Why should that person listen to your podcast?

LR: People listen to my show to get first-person perspectives on current issues, to connect with Feds going through the same issues they face, and to learn about resources they might not otherwise discover. I hope your readers not only listen to the podcast at FedUpward.com or wherever they get their podcasts, but also reach out to tell me what they want to know.

In her very first episode, Love explained the reasons for launching the podcast. Besides looking for more good news about Feds, she wanted more information for younger and middle-aged Feds, and she’d like to see agencies do more to attract younger people.

“In most of the trade publications, you still see their advertisers are hearing aid companies and bath remodelers who support customers’ loss of mobility,” she said. “I’d love to see that shift and have professional organizations for federal employees support people of all ages — and not just Young Government Leaders, who provides those opportunities now.” Gephart@FELTG.com

OPM Reentry Guidance Signals Further Acceptance, Expectation of Telework

,

By Dan Gephart, July 26, 2021

The telework paradigm shifted greatly during the pandemic and nowhere is that clearer than in the 38-page guidance the Office of Personnel Management released late last week.

While titled “Additional Guidance on Post-Reentry Personnel Policies and Work Environment,” the memorandum written by OPM Director Kiran A. Ahuja, and the majority of “Frequently Asked Questions” section focus on telework and remote work.

Ahuja wrote: “[A]gencies can, where appropriate, deploy personnel policies such as telework and remote work effectively and efficiently as strategic management tools for attracting, retaining, and engaging talent to advance agency missions, including in the context of changes in workplaces nationwide as a result of the pandemic and in response to long-term workforce trends.”

The guidance suggests that agencies “take this opportunity to adjust their telework policies to reflect a new understanding about how telework has worked at their agencies.” OPM provides the following roadmap of considerations when crafting your post re-entry telework policies:

1 – Make telework determinations based on the functions of the job, and not mere managerial preference.

2 – Treat employees with similar work functions across work units similarly when determining telework eligibility.

3 – To the extent possible, try to align telework programs with employee needs and the business goals of each work unit to avoid a one-size fits all approach to telework participation.

4 – When possible, have consistent telework policies across locations.

5 – When possible, consider restructuring jobs so that all employees, theoretically, could be eligible for at least situational or occasional telework.

6 – Make all employees aware of the agency’s telework policy and criteria for telework participation.

7 – Require all teleworkers and supervisors of teleworkers complete appropriate training before entering into a telework agreement.

8 – Provide adequate telework training to supervisors on how to assess and manage the performance of teleworkers.

9 – If appropriate, allow some or all teleworkers to meet emergency operations or COOP duties through telework rather than reporting to the normal or designated COOP site. Encourage mission essential and non-mission essential employees to practice telework to help the agency prepare to meet emergency situations.

The OPM guidance also reminds agencies to complete applicable collective bargaining obligations before directing employees to return to the physical workspace. OPM wrote:

“While an agency has the right under 5 U.S.C. 7106(a) to determine the location where particular employees will work, there may be an obligation to collectively bargain on implementation of any decision to return employees from maximum telework status prior to implementation of this decision.”

This guidance will be discussed this Friday during The 2021 Telework Challenge, the fifth and final day of FELTG’s Post-Pandemic Federal Workplace: Managing Accountability and EEO Challenges. You can still register for any of the remaining days, including Friday’s session. This latest OPM guidance will be wrapped into other upcoming training including EEO Challenges, COVID-19, and a Return to Workplace Normalcy, a 3½-hour training that kicks off FELTG’s Federal Workplace 2021: Accountability, Challenges and Trends. Gephart@FELTG.com

Don’t Just Flag Hostile Symbols; Do Something to Stop Them

, ,

By Dan Gephart, July 21, 2021

Residents from our cozy colonial-era town of Haddonfield, NJ, returned in droves to this year’s July 4 parade. (Last year’s parade was canceled due to COVID.) The streets were packed with enthusiastic and smiling (no masks!) residents, who watched as the Shriners drove circles in their tiny cars, a group of Mummers strutted, and the town’s oldest resident (102 years young) waved from a convertible.

The Stars and Stripes was ubiquitous. Parade-watchers held high the tiny flags handed out by the local Boy Scout troop, while larger American flags fluttered from every light pole in town.

As we walked home after the parade, I noticed our town was full of flags, and not all of them Old Glory. Flag makers reported an increase in sales during the pandemic, and we were seeing the results of it. I’m guessing it had something to do with people spending more time stuck at home.

The Rainbow Pride flag was the one we saw most. We saw a couple of Thin Blue Line flags. A Black Lives Matter flag hung from a porch. Another bright flag summoned us to celebrate summer, while another shouted “Freedom!” The one that made us laugh was giant black flag with white lower-cased letters spelling “freak.”

And on the corner a couple of blocks off the main street was a house flying the Gadsden flag. That’s the one depicting a rattlesnake with the words “Don’t Tread on Me” over a yellow background. If you’re in the Federal EEO community, you may know the Gadsden flag from the EEOC’s decision in Complainant v. US Postal Service, EEOC Appeal No. 0120141334 (June 20, 2014). Or, you probably know it from the clarification the EEOC sent out after its ruling:

The EEOC noted that while the Gadsden Flag originated in a non-racial context, it has since been “interpreted to convey racially-tinged messages in some contexts.” The EEOC cited its use by persons associated with white-supremacist groups who used the flag to drape the bodies of two police officers they had just murdered, and its display at a Connecticut fire house that was met with protests by African-American firefighters, ultimately resulting in the flag’s removal. The EEOC underscored the fact that it did not find that the Gadsden Flag in fact is a racist symbol. Instead, the EEOC found only that the complaint met the legal standard to state a claim under Title VII, and therefore should have been investigated by the USPS rather than dismissed.

With the rise of white supremacist and anti-Semitic groups, flags have taken on meanings that may not be that obvious. The Gadsden flag isn’t the only one that’s been appropriated by hate groups.

To the left is a flag based on a Benjamin Franklin cartoon published in 1754, urging the eight colonies (all New England is represented as one) to unite.

A few years ago, the Philadelphia 76ers embraced the Franklin cartoon for their NBA playoff logo, a flag of which can also be seen flying from a house on my block these days. [Sidenote to that neighbor: Are you lazy or what? That Game 7 loss to the Atlanta Hawks was nearly a month ago. Why must you keep reminding me of that disappointment?]

Meanwhile, white supremacist groups have seized on the cut snake logo, as seen by the poster that promoted the deadly “Unite the Right” rally in Charlottesville. Instead of uniting colonies, the poster proposes uniting hate groups.

During the video replays of the Insurrection at the Capitol, I saw numerous flags and symbols that I did not recognize, but later read were used routinely by white supremacist groups. Undoubtedly, those flags and symbols would create a hostile work environment if displayed in an office.

You don’t have to be a vexillologist (flag expert) to ensure a discrimination-free environment, but you do need to know the elements of a hostile workplace, which are:

1)    The conduct is unwelcome. That conduct could be words, jokes, touching or objects and pictures displayed.

2)    The conduct is based on a protected EEO category: race, color, national origin, religion, gender, disability, age, genetic information, or reprisal.

3)    The conduct is severe and/or pervasive.

If a flag heralded by a white supremacist group is displayed in your workplace, I’m pretty sure it’s going to check off all the boxes. (For a thoughtful legal analysis of a more challenging potentially hostile environment case, read FELTG President Deborah Hopkins’ Does Saying ‘All Lives Matter’ Create a Hostile Work Environment?)

The next step is up to you: It’s your responsibility to protect employees from harassing conduct.  Take action. Immediately. An example of what not to do can be found in Complainant v. United States Postal Service (Southeast Area), EEOC Appeal No. 0120132144 (Nov. 1, 2013). In that case, the EEOC reversed the agency’s final order and remanded the matter to the agency because it found that complainant had established that he was subjected to unlawful harassment based on race and the agency was liable for harassment.

In this case, the offending objects were t-shirts emblazoned with the Confederate flag worn by two white clerks. Initially, the AJ, while finding discrimination, did not find agency liability. The Commission saw it differently.

The shirts were worn about a dozen times over several months starting in August 2010. The agency took no action against the shirt-wearers until prompted to do so by a union grievance in May 2011, when one of the clerks was sent home to change. In fact, at one point in April 2011, the clerk was told there was “nothing wrong” with his shirt.

The agency’s supposed corrective step was a stand-up talk about work attire. During that talk, however, employees were never instructed not to wear or displays images of the Confederate flag.

When symbols of hate take hold in the federal workplace, there’s no room for mixed messages. Gephart@FELTG.com

Listen and Learn: How to Be an LGBTQ+ Ally in the Workplace

, ,

By Dan Gephart, June 16, 2021

On his first day in office, President Biden made diversity and equity a key initiative, and he made it clear that he expects the Federal workplace to lead the way. So it’s no surprise then that the first week of the Pride Month this year was marked by tweets, declarations and announcements of support from leaders at more than a dozen agencies, including the FBI, and the Departments of Transportation, Housing and Urban Development, Veterans Affairs, and more.

That is a terrific start. This kind of leadership is critical. But the real work will be done onsite, in each individual workspace, team, and office.

Everyone deserves to feel valued at work, and to have the same opportunities as every other employee to further their careers. And, it should go without saying, everyone should feel safe at work. You may think this responsibility is above your pay grade, or that you have little influence on such matters. You’d be wrong. You can make a difference in creating an equitable and inclusive environment for LGBTQ+ Federal employees simply by being an ally.

How can you be an ally? Some think it means participating in marches and flying flags. But there’s so much more to it, especially in the workplace. Use this Pride Month to assess what you can do better to be an ally. We suggest your start by listening and learning.

Listen

This sounds simple, right? Yet, it’s an immensely challenging skill that has few masters. Too often, when others are sharing their experiences, we are rummaging through the backrooms of our brains to find suitable replies instead of comprehending what the person is saying. It’s estimated that 8 in 10 Americans know someone who identifies as lesbian, gay, or bisexual. But having a friend, sibling, or acquaintance in the LGBTQ+ community doesn’t make you an expert. Don’t assume you know what your colleague thinks, wants or needs.

What if you have questions? Before burdening your coworker with the responsibility of being your source for all things LGBTQ+, ask if they’re comfortable answering the question.

Your colleague may tell you his/her/their preferred pronoun. Use their preferred pronoun when addressing them directly or indirectly. This will take some adjustment on your part, especially if the individual previously went by a different pronoun. You might sometimes inadvertently use the wrong pronoun. Accidents happen. But it’s important to correct yourself before you move on.

That said, be on the lookout for individuals who deliberately misgender employees, or share an offensive joke, a slur, or misinformation. This would be the time to speak up – and where your role as an ally can make the most impact. Immediately correct the person spreading wrong or hurtful information. Inform the offending person in private why what they said is hurtful. If it continues, report it, no matter how small the problem may seem. Microaggressions and microinsults could lead to legitimate claims of discrimination or harassment. Whether they rise to that level or not, they create an unhealthy environment.

Learn

The other important thing an LGBTQ ally can do is learn more. And, fortunately, there is no shortage of websites, documentaries and books. If your agency puts on any workshops or seminars, sign up. Take part in events, not just during Pride Month, but all year long.

Here are just a some reading lists and resources (hat tips to Meghan Droste and a fellow Gephart) you may find helpful in your quest to become an ally:

And, as you probably expect me to say if you’re a regular reader of my articles, FELTG has you covered here, too. Next week – June 23 to be exact – FELTG Instructor Meghan Droste will present a two-hour virtual training event Honoring Diversity: Ensuring Equity and Inclusion for LGBTQ Individuals. On September 1, Meghan will present another two-hour virtual training Honoring Diversity: Eliminating Microaggressions and Bias in the Federal Workplace. Both training events will run from 1-3 pm ET.  We can also bring these courses to your agency. Contact me if you’d like to find out more about this option.

There is no secret to being an ally. Listen and learn. Stand with your colleagues in the face of discrimination and bias. And remember it’s not about you. Gephart@FELTG.com

4 Tips to Prepare for Increase in Requests for Accommodation, Telework

, ,

By Dan Gephart, May 19, 2021

As we careen toward the eventual return to workplace normalcy, it’s a good time to take stock of where we are as a workforce after more than a year of pandemic-enforced remote work.

Although not geared to the federal workforce, a recent survey of US- and UK-based employers conducted by Arizona State University and the Rockefeller Foundation provides a great snapshot.

Let’s start with the good news. Most employers say that employee engagement and productivity are up. Even better, 44 percent of employers surveyed say morale has risen as well.

The bad news? Employers are seriously concerned about mental health. Half of those surveyed have increased the use of available company resources related to mental health since the pandemic began.

I surmise three points from the survey:

  1. Telework was more successful than many thought it would be.
  2. There will be a significant increase in reasonable accommodation requests by employees dealing with mental health challenges, and many of those will likely be for anxiety disorders.
  3. Many of those accommodation requests will be for telework.

As the moderator for many FELTG webinars and virtual training events, I relay your questions to our presenters. So I know that few things cause more anxiety for federal supervisors as reasonable accommodations and, more specifically, requests for telework. But here’s the thing: If you’re too worried to address employee anxieties and other mental health issues, then that increase in engagement and morale is going to sink faster than an Elon Musk comedy skit on Saturday Night Live. So I’m offering four tips for you to keep in mind for the upcoming months:

  1. Don’t delay the interactive process, and take the right approach. Let me repeat: Do not delay. I can’t tell you how to feel, but if you’re seriously trying to avoid this process, then you may be in the wrong position. The law requires prompt action. This is the stuff that being a federal supervisor is made of. The employee has the best information about his/her/their functional limitations. You, presumably, have the best knowledge about the work. Go into the process with an open mind and work with the employee to find the most effective accommodation.
  2. Don’t be afraid to ask for medical documentation, and ask for the right information. Agencies are entitled to medical documentation as part of the reasonable accommodation process. But that information must be related to determining the existence of a disability and the necessity for an accommodation. Anything beyond that is not necessary. Remember there are two reasons you may want medical documentation. Yes, you want to substantiate the need for accommodation. But the medical documentation can also help you understand the functional limitations. Keep in mind that supervisors don’t generally handle medical documentation, so check your agency’s policy on who is responsible for these requests.
  3. Don’t automatically rule out telework, and ensure there is accountability. Look, skepticism about telework may be warranted at times, but it’s about as fashionable as socks and sandals on a middle-aged man. Remember the study at the top of this story? Productivity is up while employees work en masse from home. Depending on the job, many people can work from home. Maybe the problem is you? Out of sight should not mean out of mind. Find the best way to monitor the work and stay engaged with the employee. And if performance slips, hold the employee accountable using the FELTG tools, just as you would if the employee worked in a cubicle outside your office.
  4. Don’t get frustrated, and get some training. As always, FELTG has multiple opportunities for you to get up to speed on these issues. Here are a few:
    • June 2: EEO Challenges: COVID-19 and a Return to Workplace Normalcy. In this half-day virtual training, attorney Katherine Atkinson will provide guidance on a whole host of challenges involving vaccines, pandemic-related harassment, and more. She’ll also provide a framework for handling these challenges that you can apply to other yet unforeseen challenges.
    • July 13: Disability Accommodation in 60 Minutes. During this installment of our annual Supervisory Webinar Series, FELTG President Deborah Hopkins will cover the requests for accommodation, the interactive process and much more, all in one hour.
    • Starting July 15: Reasonable Accommodation in the Federal Workplace. This five-webinar series will tackle several reasonable accommodation challenges, including specific sessions on Accommodating Invisible Disabilities (July 22) and Telework as a Reasonable Accommodation (July 29).
    • July 21: Dealing With Mental Health Challenges During and After the COVID-19 Pandemic. During this half-day virtual training, Licensed Clinical Social Work Shana Palmieri will de-stigmatize the truth about “mental illness” and will explain the impact various mental health conditions have on individuals, and those with whom they work. She’ll also provide strategies for effectively supervising and managing employees with these conditions, whether they’re in the office or working remotely. [Editor’s note: Read Shana’s article Impact of COVID on Stress, Mental Health]
    • July 26-30: The Post-Pandemic Federal Workplace: Managing Accountability and EEO Challenges. This weeklong event (each day of training runs from 12:30 – 4 pm ET) offers the most timely and up-to-date accountability and EEO training you’ll find. And it culminates on the last day, when you get to apply everything you learned earlier in the week about managing conduct, performance, leave issues and EEO in a telework setting.

Keep an eye out for other upcoming FELTG webinars and virtual training events. Gephart@FELTG.com

Opening Up the Damns About Supervisor Rules and Return to Physical Workplace

, ,

By Dan Gephart, April 20, 2021

I was moderating one of the recent webinars in our Supervisory Webinar Series (there are still a lot of great sessions left and you can still register) when FELTG President Deborah Hopkins was discussing the Five Elements of Discipline, specifically establishing legal and valid rules.

“Legally, a supervisor can establish a rule that you can’t say damn in the workplace,” Deb explained.

It’s a good thing I was on mute. If not, attendees would’ve heard me say “Damn right!,” thereby disrupting the presentation, while also breaking the example rule that Deb had just described. Why the overreaction? That “no damn” rule is the first one I would decree as a supervisor. It’s not that I’m prudish. I don’t curse much myself, but it’s not an issue for me if others do, as long as it’s not excessive.

During college, I spent  many hours working in the warehouse of a freight shipping company. I don’t want to name the specific company, other than it’s named after a color and it rhymes with “hello.”

I was promoted from loading the trucks to something called Swak Clerk. I and another young man would scan the boxes before they made their way down the conveyor belt, into a loader’s pile and onto a truck. I was eager to meet the performance standards set for me. Yet, I found it difficult because every few minutes, I’d hear someone scream my name in a very urgent manner.

I’d stop scanning and holler: “What?” This would eventually lead to someone else saying: “What?” After further back-and-forth yelling over loud warehouse noises, I’d realize that nobody called my name. A truck loader had only screamed “Damn!”

These continuous interruptions made it hard to keep up with the performance standards. Things were much worse for my fellow Swak Clerk, who dealt with the exact same problem. His name was Buck.

You can understand why I’d embrace the “no damn” rule. But these kinds of rules have been absent over the last dozen or so months. During that time, employees have worn sweatpants, worked in bed, eaten whenever and wherever they wanted, yelled at their kids, and walked their new dogs during the workday. They’ve done a lot of things they’re not going to be able to do once they return to the physical workplace. Readjusting to unique workplace rules is going to be a little challenging.

The concept of supervisor’s rules is such a basic principle, there isn’t a foundational case that specifically addresses whether small rules set by supervisors are OK.

There were a few cases where supervisor’s rules were questioned, but those cases were adjudicated for completely different reasons. (Safe must be locked at all times when not in use – Chavez v. DVA, 120 MSPR 285 (2013)) (Leave office lights on during work hours – Mogil v. Dep’t of Veterans Affairs, No. 2018-1673 (Fed. Cir. May 1, 2019)) (Men must wear neutral pants but women may wear pants of any color – Shedd v. FAA, EEOC No. 0120073132 (2007)).

The general authority to run the workplace the way a supervisor sees fit comes from 5 USC 301-302:

The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. [Emphasis added.]

If you’re a fellow “Dan” or “Buck,” hard of hearing, or someone who hates mild profanity and you’re looking for more guidance, you should read Pinegar v. FEC, 2007 MSPB 140.

In that case, a GS-12 attorney with a discipline-free record was removed based on two charges: Disruptive Behavior (two specifications) and Making Inappropriate Remarks (seven specifications, including referring to his supervisor’s writing as “crap,” making unseemly accusations, and using a sarcastic or intemperate tone).

The agency had issued “four express warnings” and the employee still did not correct his behavior, so the agency proposed removal, which the MSPB upheld.

For more guidance on rules and everything else involving accountability, register now for UnCivil Servant: Holding Employees Accountable for Performance and Conduct held over two half-days on May 19 and 20. [If you have new supervisors, this course fulfills OPM’s mandatory training requirements for new supervisors. Also, registrants for both days will receive a copy of the textbook UnCivil Servant: Holding Federal Employees Accountable for Performance and Conduct, 5th Ed., by William Wiley and Deborah Hopkins.]

Basically, if your rule makes sense and it doesn’t run afoul of any law, you’re good. But in the coming months, as your employees reacclimate themselves to their old workspaces, you might want to ease up a little on any rules that are more onerous than useful. Gephart@FELTG.com