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So, About that Employee Who Gets Vaccinated AFTER Being Removed

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By Deborah Hopkins, October 20, 2021

In the previous article, Bill Wiley shared the logical process for agencies to use progressive discipline when a Federal employee refuses to be vaccinated and doesn’t qualify for a legal exemption.

There are a couple of other scenarios also worth addressing, as it’s likely they will occur in at least a few agencies. We’ll begin where the employee has received a notice of proposed removal for refusing to be vaccinated.

Scenario A: At the response to a proposed removal, the employee:

  1. Says she was vaccinated after the proposal, or
  2. Says she will get vaccinated if she’s permitted to keep her job.

OPM and the CHCO Council recently issued enforcement guidance that suggested the discipline should “end” if after the proposal notice the employee provides the agency with appropriate documentation that the employee is now fully vaccinated.

If the employee has only received one dose of a 2-dose vaccine, the guidance suggests the agency should “hold any disciplinary action in abeyance pending receipt of appropriate documentation that the employee has received the second dose within the designated 3- or 4-week interval depending on the vaccine received by the employee, even if this means the employee will not be fully vaccinated until after November 22, 2021.”

Under Scenario A.2, though, here’s another thought: The DO could offer the employee a Last Chance Agreement and include a requirement that she provide proof of the first vaccine dose within 5 days (any of the FDA-approved or emergency use authorized vaccines), and proof of a second dose (if applicable) within 21 (Pfizer/BioNTech) or 28 (Moderna) days, depending on the vaccine received. According to the guidance, the employee would need to provide documentation of full vaccination status within 5 weeks.

If the employee does not show proof of full vaccination by the end of that time period, the agency could then remove the employee under the LCA. As a bonus, other parameters written in to the LCA could also allow the agency to remove the employee for any misconduct or less than fully successful performance over the next two years.

Scenario B: The employee is removed, files an MSPB appeal, and gets vaccinated before his MSPB hearing.

In this scenario, the main question for the agency is whether MSPB is likely to uphold the removal since the employee’s condition has changed. Indeed, the nominees for MSPB were asked about this very scenario during their committee hearing on September 22, and demurred on answering this specific question.

There are countless MSPB cases where the Board has upheld discipline for employee insubordination, failure to follow orders, and related charges. See, e.g., Phillips v. General Services Administration, 878 F.2d 370 (Fed. Cir. 1989); Gallagher v. Department of Labor, 11 MSPR 612 (1982); Parbs v. USPS, 2007 MSPB 302 Lentine v. Treasury, 94 MSPR 676 (2003).

And of course, in light of Executive Order 14043, most of us are now familiar with a case where the Federal Circuit upheld an agency’s decision to remove two employees who refused an anthrax vaccine mandate. The Federal Circuit agreed the agency had authority to require vaccines because such action was necessary and appropriate to protect the health of the employees. Mazares, Jr. v. Navy, 302 F.3d 1382 (Fed. Cir. 2002). The MSPB had also affirmed the removal in that case.

The answer on whether removal will be upheld may seem clear. However, remember that MSPB is allowed to mitigate an agency’s penalty if it finds the penalty is outside the bounds of reasonableness. See Payne v. USPS, 72 MSPR 646 (1996). Will the incoming MSPB find a removal is too harsh for an employee who initially refused, but eventually got vaccinated? Doubtful, but possible.

One other fun thought: There are a few cases where MSPB has reinstated a removed employee whose situation has changed, but those tend to deal with non-disciplinary medical inability to perform removals. MSPB has such cases, where an employee’s medical condition improves and  the employee is medically able to work again, as easy to resolve because it would be “manifest absurdity” not to reinstate an employee who was removed for non-disciplinary medical reasons beyond their control. In such cases the appellant must produce evidence of a) full recovery b) prior to the close of the record before the Administrative Judge. See, e.g., Street v. Army, 23 MSPR 335 (1984); Hodges v. DoJ, 2014 MSPB 54. How this would work, if it would work at all, with a two-step vaccine mandate with a government-wide date certain, nobody knows.

FELTG suggestion: Rather than force the issue to litigation, the agency could settle with the employee and offer a reprimand in lieu of a 14-day suspension, if the employee was valuable to the agency and it would benefit the agency to bring the employee back.

Join FELTG November 3 for the brand new virtual event The Exemption Proves the Rule: Reasonable Accommodation, Discipline, and the Vaccine Mandate where we discuss all these matters, and more. Hopkins@FELTG.com

Novel Coronavirus Workplace Challenges: You Already Have the Tools to Do This

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By Deborah Hopkins, October 5, 2021

The novel coronavirus has brought about numerous novel challenges in the Federal workplace. It can be tempting to allow all these “new” issues to feel completely overwhelming. But let me share something with you that I first heard from Katie Atkinson, one of FELTG’s instructors and our resident specialist in all things related to COVID-19 and EEO. “You already have the tools to do this. Apply the facts to the existing legal framework” to get the answer you need.

I can think of a couple of areas where this is especially important both now and when return to the workplace orders are implemented.

Reasonable Accommodation

Your agency probably hadn’t received requests for disability accommodation related to a global pandemic before 2020. Now, when you receive a covid-related RA request, you should give the request the same individualized analysis as any other RA case.

1. Does the employee have a disability?

2. Is the employee a qualified individual with a disability?

3. Did the employee request accommodation?

4. Did the agency engage in the interactive process to determine potential accommodations?

5. If an accommodation is denied, is it because the accommodation would not be effective, or would be an undue hardship?

A person with a back problem who requests an ergonomic chair will benefit from the same step-by-step process as a person with asthma or diabetes who is susceptible to severe covid infection if exposed in the workplace.

The facts are new; the process is not. You already have the tools to do this. (If you need a refresher, join FELTG for on the virtual training event The Exemption Proves the Rule: Reasonable Accommodation, Discipline, and the Vaccine Mandate November 3 and we’ll show you how.)

Employee Misconduct

Agencies have been disciplining employees for misconduct under the civil service systems for more than 100 years. The facts related to the misconduct might change, but the framework does not. Whether you have an employee who misuses an agency purchase card, falsifies a timecard, refuses to wear a mask in a Federal building where there is a mask mandate, or refuses to provide proof of vaccination, the misconduct case should be handled according to law and regulation.

FELTG’s Five Elements of Discipline© will get you there:

1. Is there a rule?

2. Does the employee know the rule exists?

3. Does the agency have evidence the employee broke the rule?

4. Can the agency justify the penalty?

5 . Did the agency provide due process?

The facts are new; the process is not. You already have the tools to do this. (If you need a refresher, join FELTG for the webinar series Navigating the Return to the Federal Workplace in October and we’ll show you how.)

A reporter recently asked me if I thought the Federal government was prepared to handle the challenges that are anticipated with return to the workplace orders, and I didn’t hesitate when I said: “They absolutely are prepared. The facts are new but the process is not.” Whether you realize it or not, if you have taken training with FELTG you already know how to do this. And if you need a little refresher or a primer, we’ll be happy to help. Hopkins@FELTG.com

Three Questions About the Vaccine Requirement for Feds

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By Deborah Hopkins, September 20, 2021

Executive Order 14043, Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, is currently the basis of a lot of conversations in the Federal employment law world, and beyond. I know it’s a potentially divisive topic, and most people have strong feelings about it. However, FELTG’s focus is not on feelings, but rather on the legal issues related to the EO.

Below are three recent questions – and our best attempt at answers based on what we know so far. Please keep in mind the guidance has been changing every few days, so we’ll keep you posted if anything new comes up.

1. What are the “exceptions as required by law” referenced in the Executive Order?

There are two primary areas where legal exceptions might be granted: as reasonable accommodation for disability, and as reasonable accommodation for religion. It’s important to understand the differences between disability accommodation and religious accommodation, as the processes and requirements are entirely different. (Join us October 12 for Handling Pandemic-Related Reasonable Accommodation Requests and Medical Documentation, the first webinar of our three-part series Navigating the Return to the Federal Workplace.) And just because someone has a valid medical reason to not get the vaccine or has a sincere religious belief or practice that prevents them from receiving the vaccine, this DOES NOT mean the agency must waive the vaccine requirement. It merely means the employee is entitled to the RA process to determine whether a reasonable accommodation is available without causing an undue hardship. (Be prepared to address whether allowing an unvaccinated worker to report for duty could cause a direct threat by putting the employee, or co-workers or members of the public, in harm’s way, which is likely an undue hardship.)

Notably, teleworkers and remote workers are NOT exempted from the vaccine mandate. According to updated guidance from the Safer Federal Workforce Task Force (issued last week), “Employees who are on maximum telework or working remotely are not excused from this requirement, including because employees working offsite may interact with the public as part of their duties and agencies may need to recall employees who are on maximum telework or working remotely.” Also, note that political beliefs or personal feelings do not provide a valid reason for legal exemption.

2. Must an employee’s religion explicitly forbid the COVID-19 vaccine for an employee to receive a religious exemption?

Fellow instructor Katie Atkinson and I discussed this topic in a recent FedUpward podcast, and we believe this is going to be an emerging area where agencies will suddenly be inundated with requests; previously religious accommodation requests have not been very common or complicated. In fact, in most agencies there’s not a designated team to assist in religious accommodation requests. We suggest that your agencies train a point person or team to be ready to handle these requests, as such exemptions must be requested by November 22. And because religious accommodation is different than disability accommodation, don’t assume your existing RA team has experience with religious accommodation requests.

Now on to the answer. No doubt you’ve seen media reports of pastors offering religious exemption certificates in exchange for donations to the church, and discussions about whether mainstream religions really forbid the covid vaccine.

For example, Pope Francis publicly stated that the Catholic Church does not forbid the COVID-19 vaccine. He called getting vaccinated “an act of love.” So, here’s an example of what you might see: a request for exemption from an employee who claims their Catholic religion forbids them from receiving the vaccine. Is that a sincere belief even though it’s contrary to mainstream Catholic Church’s stance?

No doubt we will have EEOC cases in the coming years focused on this topic, but here are a few things we already know:

  • Title VII defines “religion” to include “all aspects of religious observance and practice as well as belief.” The definition of religion is broad and includes not only traditional, organized religions, but also religious beliefs that are new or uncommon, or that seem illogical or unreasonable to others.
  • A religion does not have to be an organized, formal religion, and may include moral and ethical beliefs as to what is right and wrong that are sincerely held with the strength of a traditional religious view. 29 CFR §1605.1.
  • Social, political, or economic philosophies, as well as mere personal preferences, are not ‘religious’ beliefs protected by Title VII. EEOC Compliance Manual, Section 12-I, A-2.
  • Agencies should ordinarily assume that the employee’s religious beliefs are sincerely held unless there is “an objective basis for questioning either the religious nature or the sincerity of particular belief.” 29 CFR 1605; EEOC Compliance Manual 12-I. (bold added)
  • Factors that may indicate a belief is not sincere include:
  • Whether employee has behaved in a manner markedly inconsistent with the professed belief
  • Whether accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons
  • Whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons)
  • And whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons

EEOC Compliance Manual, Section 12-I, A-2.

As you can see, this area is ripe for potential exploration, perhaps specifically on the sincerity of beliefs. Join us in October for Navigating the Return to the Federal Workplace.

3. If employees refuse the vaccine and don’t qualify for a legal exemption, must agencies use progressive discipline?

I can’t count the number of times in recent days I have seen reports that agencies will or should employ progressive discipline for employees who refuse to get the vaccine. Is progressive discipline (reprimand, suspension, removal) a tool agencies may use in these cases? Yes. Is it mandatory? Unless there’s an agency policy that says so, no. The Task Force guidance says that in cases of employee refusal to be vaccinated agencies “should pursue disciplinary measures, up to and including removal from Federal service.”

As we’ve discussed previously, employees who refuse a mandate to get vaccinated may be removed, even for a first offense. See Mazares, Jr. v. Navy, 302 F.3d 1382 (Fed. Cir. 2002). But some agencies may take the approach that a reprimand and/or suspension should come first, as an attempt to give the employee a chance to correct his misconduct before a removal is proposed.

Be mindful of the charge your agency uses when disciplining an employee for not being vaccinated. Will the agency go with a charge such as “failure to follow instructions” or “refusal to be vaccinated against COVID-19,” or will it choose to look at these cases as “failure to maintain a condition of employment”?

We’ll keep you posted as things continue to develop. Don’t miss the last call for registrations for Federal Workplace 2021: Accountability, Challenges and Trends, where we’ll talk about all this and more. Hopkins@FELTG.com

Now that Vaccines are Mandated for Federal Employees, Can You Ask an Employee to Provide Your Agency with a Copy of Their Vaccine Card?

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By Deborah Hopkins, September 14, 2021

Stories about falsified vaccination cards are now peppering my newsfeed, including government seizure of fake vaccine cards at the border, and highlights of people who got caught attempting to travel to Hawaii with fake vaccination cards in attempt to and avoid mandatory quarantine. The woman whose card said she received a “Maderna” vaccine and the father who presented with vaccine cards for his 5- and 6-year-old children – far too young to be eligible for the vaccine – are the most memorable.

FELTG readers are likely aware of President Biden’s Executive Order 14043 last week requiring all Federal employees to be vaccinated against COVID-19. (FELTG instructor Katie Atkinson and I recently discussed the new vaccine requirement on an episode of the FedUpward podcast.)

This new EO reflects the administration’s increased push to get all eligible Americans vaccinated, and on Monday the White House set the vaccination deadline as November 22. The EO follows a July requirement that employees attest to their vaccination status, otherwise be mandated to weekly testing, limits on official travel, wearing face masks, and physically distancing, plus following other protocols the CDC recommends for unvaccinated people in the workplace.

New! On September 16, 2021, updated guidance was issued:

Q: Must agencies require documentation from employees to prove vaccination status?

A: Yes, agencies must require documentation from employees to prove vaccination, even if an employee has previously attested to their vaccination status. Employees may provide a copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card, a copy of medical records documenting the vaccination, a copy of immunization records from a public health or state immunization information system, or a copy of any other official documentation containing required data points. The data that must be on any official documentation are the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s). Employees must certify under penalty of perjury that the documentation they are submitting is true and correct.

Employees may provide a digital copy of such records, including, for example, a digital photograph, scanned image, or PDF of such a record that clearly and legibly displays the information outlined above. In requesting this information, agencies should comply with any applicable Federal laws, including requirements under the Privacy Act and Rehabilitation Act of 1973.

Q: Are there penalties for providing false information on the vaccination attestation form?

A: Federal employees who make a false statement on the Certification of Vaccination form could be subject to an adverse personnel action, up to and including removal from their position. It is also a Federal crime (18 U.S.C. § 1001) for anyone to provide false information on the form. Falsification could also affect continuing eligibility for access to classified information or for employment in a national security position under applicable adjudicative guidelines.

The Task Force will be releasing additional guidance on vaccination requirements later this week, and we’ll be sure to keep you informed. In addition, we’ll be dealing with this topic and more in the October 26 webinar Post-Pandemic Accountability: Handling Employee Performance and Misconduct in a COVID-19 World. That webinar is the final session of the three-part series Navigating the Return to the Federal Workplace, which begins October 12 and includes discussion on EEO issues related to vaccines, reasonable accommodation, and more. Hopkins@FELTG.com

What Happens if the EEO Director or Personnel Attorney is Named in an EEO Complaint?

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By Deborah Hopkins, September 14, 2021

Here’s the scenario: A complainant files multiple EEO complaints including complaints against an attorney in the agency’s Office of General Counsel and the agency’s EEO Director. The complainant requests the attorney and the EEO Director to recuse themselves from the case. The GC and EEO Director happen to be the employees who handle most EEO matters and litigation for the agency in this particular region.

Because of her experience, the attorney would like to be involved in defending the agency against the complaints rather than create a firewall and pass this case off to a less-experienced attorney. And the EEO Director doesn’t want to recuse because he believes there is no merit to the EEO complaint.

What should the agency do?

Ideally, the agency should have a conflict policy in place and an agreement with another region or even another agency to step in for the investigation and defense of complaints in situations like this.  The EEOC issued a report last year with guidance on these conflict policies.

If the agency doesn’t have a conflict policy in place now, the below case discusses the conflict issue and should encourage the agency to address this as soon as possible: Katharine B. v. USPS, EEOC App. No. 0120170444 (Dec. 7, 2018).

“In Monroig, the Commission held that permitting the Deputy General Counsel, one of the responding management officials, to attend the hearing and simultaneously act as agency representative would create an inherent conflict of interest and tarnish other witnesses’ testimony.

EEO Management Directive 110 (EEO MD-110) (Aug. 5, 2015) requires that there be distance between the fact-finding and defensive functions of the agency in order to enhance the credibility of the EEO office and the integrity of the EEO complaints process. EEO MD-110, Chapter 1, at § IV (Aug. 5, 2015). The Commission ruled that even if the Deputy General Counsel had testified before all other witnesses at the hearing, her presence would discourage other employees from testifying freely at the hearing.

The Commission noted that the Agency was well represented at the hearing despite the Deputy General Counsel’s absence.

Accordingly, we find that a conflict of interest existed in the Agency’s representation at [*13] the hearing and that Complainant is entitled to a new hearing, in which S1 may not be involved as an Agency representative. See Rabinowitz v. U.S. Postal Serv., EEOC Request No. 05930348 (Sept. 23, 1993) (officials involved in discrimination may not be involved in processing the complaint).” [bold added]

Bottom line: Take conflict allegations seriously. Find a way to recuse counsel or EEO officials who may have conflicts of interest. Better yet, get ahead of these situations now by putting together a conflict policy, as recommended by the EEOC. It may not be something that arises often but being prepared for a conflict will benefit the agency in the long run. Hopkins@FELTG.com

Undoing the Last Four Years: Federal Circuit Clarifies the Burden of Proof in VA Discipline

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By Deborah Hopkins, August 13, 2021

Over the last four years, the VA has enjoyed a lower burden of proof in taking disciplinary actions against employees covered by the VA Accountability and Whistleblower Protection Act, 38 USC 714. Indeed, Congress passed this law in 2017 to make it easier to fire bad employees at the VA.

Between then and today, we have learned that the law is not retroactive for actions that occurred prior to its enactment (Sayers v. VA, 954 F.3d 1370 (Mar. 31, 2020); Brenner v. VA, No. 2019-2032 (Mar. 9, 2021)) and that, while MSPB has no penalty mitigation authority in actions taken under this law, agencies must show by substantial evidence that their selected penalty is reasonable. Mogil v. VA, No. 2018-1673 (Fed. Cir. May 1, 2019). Ok, fine. We can live with that.

Now, get ready.

On August 12, the Federal Circuit hit us with a big one. In this case, a Supervisory Consumer Affairs Specialist named Ariel Rodriguez yelled and used profanity at a patient in a VA facility. The confrontation escalated and the police were called. The police had to escort Rodriguez to his office because he was so agitated. After that, Rodriguez returned to the reception area, where he again confronted the patient. During the investigation that followed, Rodriguez was dishonest in his account of the events that occurred. He also attempted to influence one of his employees to alter her testimony to the investigator.

Rodriguez was removed on three charges: (1) disruptive behavior toward a veteran patient; (2) conduct unbecoming a federal supervisor, and (3) lack of candor. The facts justified an easy removal for the VA – or so we all thought. Plenty of witnesses, police activity, a patient’s wellbeing in danger, clear nexus – no question there was substantial evidence of misconduct and substantial evidence to support removal.

But wait.

The Federal Circuit saw things differently. There are two huge new takeaways that every management official at the VA must be aware of, courtesy of this case, Rodriguez v. VA, No. 2019-2025 (Fed. Cir. Aug. 12, 2021).

  1. The standard of proof for a VA to take a disciplinary action is a PREPONDERANCE of the evidence; the substantial standard in the statute only refers to MSPB’s review of the action.
  2. The VA must complete a Douglas factors analysis for its disciplinary actions, even though the MSPB lacks authority to mitigate the agency’s penalty.

Let’s look at each in turn.

  1. Burden of Proof

For the past four years, just about everyone in this business has been under the impression that the language in 38 USC 714(d)(2)-(3) “if the decision is supported by substantial evidence” meant that the agency action also required the substantial evidence standard. It’s even in the VA’s Discipline policy.

But the Federal Circuit said otherwise:

The references to “substantial evidence” in section 714 are all explicitly directed to the standard of review to be applied by administrative judges and the Board. Those references do not address the standard of proof to be applied by the DVA in making disciplinary determinations, nor does the remaining text of section 714 explicitly address the standard of proof in proceedings before the DVA…[T]he language of section 714 implies that the proper standard is the preponderance of the evidence. Section 714 provides that an employee may be removed, demoted, or suspended “if the Secretary determines the performance or misconduct of the covered individual warrants” such action. In the case of a disciplinary action based on misconduct, the requirement that the Secretary “determine” that the misconduct in question warrants disciplinary action implies that the Secretary must find that it is likely, i.e., more likely than not, that the employee has engaged in the misconduct that justifies the proposed discipline. [bold added]

The court’s explanation included discussion that if substantial evidence was the standard used, a Deciding Official would be required to find against the employee with regard to the charged misconduct even if the Deciding Official did not personally agree with that conclusion, because when substantial evidence is applied, a reasonable person might disagree and yet the standard is still met. The court said in no uncertain terms that the VA Accountability and Whistleblower Protection Act does not contain “any language stating explicitly, or even implicitly, that the burden of proof in disciplinary actions should be substantial evidence.”

Because the agency applied the substantial evidence standard in this case, what we now know is an incorrect standard, it was remanded back to the MSPB.

  1. Douglas Factors

Because the VA Accountability and Whistleblower Protection Act explicitly states that the MSPB does not have the authority to mitigate the agency’s penalty (38 USC 714(d)(2)(B)), in the first year or two after the law’s enactment the VA was (and the rest of us were) under the impression that Douglas factors were not required. In other words, if a penalty could not be mitigated, then there was no need to justify the penalty – and penalty defense is the primary reason why agencies use the Douglas factors.

Starting in 2019, the Federal Circuit determined that there must be substantial evidence the agency’s penalty is reasonable, otherwise the MSPB could remand a case back to an agency to determine a more appropriate penalty. Mogil, above.

The court in Rodriguez takes things further and says, “this court has made clear that the absence of mitigation authority does not deprive the Board of the authority to review penalties for substantial evidence” and that mitigation authority is completely divorced from “the power to review and strike down the DVA’s imposition of penalties that are arbitrary, capricious, an abuse of discretion, or not in accordance with law.” To that end:

For a reviewing tribunal to find a decision not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, that decision must have been based “on a consideration of the relevant factors and whether there has been a clear error of judgment…” [citation omitted] Accordingly, because the Board must review the DVA’s penalty selection in a section 714 case, that review must ensure that the DVA considered the relevant factors bearing on the penalty determination.

The court emphasized this point by declaring the Deciding Official must “weigh the relevant factors bearing on the appropriateness of the penalty, including the relevant Douglas factors” in cases of misconduct. So, there it is.

There is a whole lot more to discuss from this decision, but we’ll tackle those issues another time. As for now, we are anticipating multiple years’ worth of cases will be remanded to determine whether the VA had a preponderance of the evidence, and not merely substantial evidence, in taking appealable disciplinary actions. The good news for the VA is, preponderance is not too difficult to show, and I would bet they can meet this burden in nearly every case. The bad news is there’s a whole lot more work ahead. Please let us know how we can help – and attend UnCivil Servant September 8-9 or MSPB Law Week September 13-17 for all the details on what happens now. Hopkins@FELTG.com

Should Your Agency use Progressive Discipline or Performance Demonstration Periods with Probationers?

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By Deborah Hopkins, July 21, 2021

The question in this article’s title has come up a few times over the last several weeks, particularly during our flagship UnCivil Servant training classes.

We’ll give you the short answer, and then the longer answer.

Short answer: No.

Explanation: According to OPM, “The law and regulations specifically exclude probationary/trial employees from the procedures that require the use of an opportunity to improve. This exclusion is because the entire probationary period is similar to an opportunity period. These employees should receive closer supervision, instruction, and training as needed during the first year of their employment.” The same principle is true when it comes to discipline. The agency doesn’t have to justify its penalty in removing a probationer, so even minor misconduct that wouldn’t justify removal of a career employee can warrant a probationer’s removal.

As soon as there’s a performance or conduct issue, the law allows to the agency to remove the probationer, even if the offense is minor.

Here is why removing a probationer without a Demonstration Period or progressive discipline makes sense:

  • The proof necessary to remove a probationer is very low.
  • The action can be taken and effected in one day.
  • If the probationer is ALREADY having performance or conduct issues, just imagine how they might behave once their due process rights attach.
  • It expedites the process to get the position posted again.

Now, read the headline again and then check out the next piece of discussion.

Longer answer: Maybe, probably not, but if you do then you’d better realize WHY you’re doing it.

Explanation: If a probationary employee is already having performance or conduct issues, the supervisor needs to think very hard about whether the additional time and effort spent to coach, train, work closely with, mentor, and help the probationer along is worthwhile. Because once that probationer hits their one-year mark (in most jobs, anyway), they become a fully vested career employee where civil service protections attach. It’s still possible for the agency to take an action against a career employee, as FELTG readers well know, but the simplicity of a probationer’s removal cannot be overstated.

The below situations might be reasons why a supervisor decides to keep a probationer around:

  • The position is difficult to recruit for or the job is located in a remote place.
  • The benefit to the government of working with the employee outweighs the drawback to the supervisor.
  • The employee has a unique skillset that it is worth the extra oversight to keep that person employed by the agency.
  • The employee’s attitude shows willingness to learn and improve.
  • The misconduct cannot be forgiven, but the supervisor doesn’t think it requires the probationer’s removal.

Surely, there are multiple other reasons why supervisors might keep probationers around. And let me be clear: I am not advocating pro- or con- removal, one way or the other. I just think it is important to point out that probationers have very few rights to their jobs while in the probationary period. If an agency is having a problem with a probationer, that supervisor should think very hard about making life easier and handling the problem now. However, if the supervisor thinks there’s hope for the employee, I can absolutely understand and support that position as well. Regardless of your stance on this issue, best of luck with all your probationary employees.  Hopkins@FELTG.com

Do You Know the Difference Between Willful and Intentional Misconduct? If Not, You’d Better Read This

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By Deborah Hopkins, July 12, 2021

A few weeks ago, my colleague and FELTG Founding Father Bill Wiley drew my attention to a Federal Circuit decision that gave the Federal employment law world an important distinction in legal definitions. The case involved an IRS agent who disclosed confidential taxpayer information, including personally identifiable information (PII), to an unauthorized person for her own benefit. The unauthorized person was her attorney, and the information was disclosed as the attorney was preparing a response to a proposed suspension for “displaying discourteous and unprofessional conduct and for failing to follow managerial directives.”

The IRS removed the employee for “intentionally disclosing taxpayer information to an unauthorized person” and the MSPB AJ upheld her removal, agreeing with the agency that the misconduct was severe because “taxpayer privacy is ‘sacrosanct.’” In addition, the employee had received training on the importance of keeping taxpayer PII private, did not redact any PII before sending the information to her attorney, and did not receive permission from the agency to disclose the information.

She appealed her removal to the Federal Circuit. While acknowledging the disclosure of taxpayer PII was improper, she argued on appeal that removal was too harsh because “[t]he penalty imposed was that for willful disclosure, rather than negligent disclosure.”

Keep in mind, the charge was “intentionally disclosing taxpayer information to an unauthorized person.”

The Federal Circuit did not agree with her argument, but rather agreed with the MSPB that her “removal was properly predicated on her intention to disclose the information to her attorney and did not depend on whether she knew that the disclosure was wrong.” Therefore, it was not improper for the IRS “to consider such intentionality as aggravating.”

Now the fun part – the discussion on the use of the words willful and intentional. The court said that in the petition for review, the employee improperly referred to being charged with “willful disclosure” when her actions were actually charged as intentional. The court said these two words are sometimes used interchangeably but shouldn’t be. And then they told us why:

  • An intentional action is one that an employee commits on purpose, not negligently. It is not a requirement that the employee know the action is illegal, if the agency can show the employee’s intent was to commit the action at issue.
  • A willful action is different; it is an action an employee commits on purpose with knowledge that the act is prohibited. If there is no evidence the employee knew the action was prohibited, the misconduct is not willful, but may be intentional.

The IRS employee acted intentionally when she provided taxpayer information to her attorney. The agency did not charge her with willful disclosure and, therefore, was not required to prove that she specifically knew the act was prohibited by law. The employment law nerd in me just loves this kind of stuff. If you’d like to read the case yourself, it’s Vestal v. Treasury, Fed. Cir. No. 2020-1771 (Jun. 14, 2021). And for more fun discussions on disciplinary charges, join FELTG for the virtual training program Understanding Misconduct: Disciplinary Charges and Penalties, held on July 26 as part of our weeklong program The Post-Pandemic Federal Workplace: Managing Accountability and EEO Challenges. Hopkins@FELTG.com

How is Your Agency Doing on the Federal Workplace Executive Order Task Deadlines?

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By Deborah Hopkins, June 22, 2021

It’s now been five months since President Biden issued Executive Orders 13985 and 13988 – what we at FELTG are now referring to as the Diversity, Equity, Inclusion and Accessibility (DEIA) Executive Orders. If you paid close attention to the requirements in the EO, you’ve probably realized that there are some agency deadlines that have passed, or will be approaching very soon. Below is a review of some of the most important takeaways and tasks from these DEIA EOs.

Executive Order 13988: Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation

As the title of this EO suggests, the focus of this EO is on preventing and combating discrimination on the basis of gender identity or sexual orientation, including overlapping forms of discrimination. The following tasks and deadlines were assigned on the day the President took office:

Sec. 2. Enforcing Prohibitions on Sex Discrimination on the Basis of Gender Identity or Sexual Orientation. 

Task (a): Review all existing orders, regulations, guidance documents, policies, programs, or other agency actions that:

(i) were promulgated or are administered by the agency under Title VII or any other statute or regulation that prohibits sex discrimination, including any that relate to the agency’s own compliance with such statutes or regulations; and

(ii) are or may be inconsistent with the policy set forth in section 1 of this order.

Deadline: As soon as practicable, and in consultation with the Attorney General.

Task (b): Consider whether to revise, suspend, or rescind such agency actions, or promulgate new agency actions, as necessary to fully implement statutes that prohibit sex discrimination and the policy set forth in section 1 of this order.

Deadline: As soon as practicable, and in consultation with the Attorney General.

Task (c): Consider whether there are additional actions that the agency should take to ensure that it is fully implementing the policy set forth in section 1 of this order. If an agency takes an action described in this subsection or subsection (b) of this section, it shall seek to ensure that it is accounting for, and taking appropriate steps to combat, overlapping forms of discrimination, such as discrimination on the basis of race or disability.

Deadline: As soon as practicable, and in consultation with the Attorney General.

Task (d): Develop, as appropriate, a plan to carry out actions that the agency has identified pursuant to subsections (b) and (c) of this section, as appropriate and consistent with applicable law.

Deadline: In consultation with the Attorney General, 100 days: May 1, 2021.

Examples of impacted areas:

  • Health care providers
  • Restroom/locker room use in Federal buildings and on Federal land
  • Public postings
  • Harassment
  • Education
  • Immigration
  • Law enforcement
  • Employment

Hurry – register for the June 23 class Honoring Diversity: Ensuring Equity and Inclusion for LGBTQ Individuals.

Executive Order 13985: Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government

This EO focuses on what agencies can do to include all segments of the population in having access to the services that the Federal government provides, with an emphasis on communities that have traditionally had challenges in receiving equal access. Below are the tasks and deadlines, also issued January 20:

Sec. 4. Identifying Methods to Assess Equity. 

Task: Agency heads shall study methods for assessing whether agency policies and actions create or exacerbate barriers to full and equal participation by all eligible individuals.

The study should aim to identify the best methods, consistent with applicable law, to assist agencies in assessing equity with respect to race, ethnicity, religion, income, geography, gender identity, sexual orientation, and disability.

Examples:

  • Vaccine distribution
  • Housing
  • Healthcare
  • Food security

Deadline: Within 6 months of the date of this order (July 21, 2021), the Director of OMB shall deliver a report to the President describing the best practices identified by the study and, as appropriate, recommending approaches to expand use of those methods across the Federal Government.

Sec. 5. Conducting an Equity Assessment in Federal Agencies.  

Task: Select certain agency programs and policies for a review that will assess whether underserved communities and their members face systemic barriers in accessing benefits and opportunities available pursuant to those policies and programs:

(a) Potential barriers that underserved communities and individuals may face to enrollment in and access to benefits and services in Federal programs;

(b) Potential barriers that underserved communities and individuals may face in taking advantage of agency procurement and contracting opportunities;

(c) Whether new policies, regulations, or guidance documents may be necessary to advance equity in agency actions and programs; and

(d) The operational status and level of institutional resources available to offices or divisions within the agency that are responsible for advancing civil rights or whose mandates specifically include serving underrepresented or disadvantaged communities.

Deadline: Within 200 days of the date of this order (August 9, 2021) provide a report to the Assistant to the President for Domestic Policy (APDP) reflecting findings on a-d, above.

Sec. 6. Allocating Federal Resources to Advance Fairness and Opportunity.

Task: Allocate resources to address the historic failure to invest sufficiently, justly, and equally in underserved communities.

Deadline: None identified, though a mention of the President’s budget submission to Congress indicates sooner rather than later.

Sec. 7. Promoting Equitable Delivery of Government Benefits and Equitable Opportunities.

Task: Consult with the APDP and the Director of OMB to produce a plan for addressing:

(i) any barriers to full and equal participation in programs identified pursuant to section 5(a) of this order; and

(ii) any barriers to full and equal participation in agency procurement and contracting opportunities identified pursuant to section 5(b) of this order.

Deadline: 1 year; January 20, 2022.

Sec. 8. Engagement with Members of Underserved Communities.  

Task: In carrying out this order, agencies shall consult with members of communities that have been historically underrepresented in the Federal Government and underserved by, or subject to discrimination in, Federal policies and programs. The head of each agency shall evaluate opportunities, consistent with applicable law, to increase coordination, communication, and engagement with community-based organizations and civil rights organizations.

Examples:

  • Surveys
  • Phone calls
  • Comment cards
  • Public outreach
  • Focus groups
  • Social media campaigns

Deadline: None identified; commensurate with deadlines above

It is certainly no small feat, and this is the starting point, rather than the end point. But these tasks all reflect the goals of this Administration, to promote DEIA in the Federal government, and in the services the government provides to Americans (and non-Americans) as well. Hopkins@FELTG.com 

If You Thought SES Discipline Was Unique, Wait Until You Read About SES Performance Procedures

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By Deborah J. Hopkins, June 16, 2021

Last month, we looked at some of the unique aspects to disciplining a member of the Senior Executive Service (SES). This month, we will cover your agency’s options in the rare event a non-probationary member of the career SES has a performance issue.

Unlike GS employees who can be removed for unacceptable performance entirely unrelated to an annual performance rating, a performance-based removal for an SES member must be based on that employee’s final rating(s) – typically the rating given as part of the annual performance appraisal.

If an SES member is performing unacceptably, however, agencies do not have to wait until the end of the appraisal year. There is flexibility to end an SES member’s appraisal period at any time (after the minimum appraisal period, which is 90 days in most agencies) if there is an adequate basis to prepare a final rating. According to OPM, this rating may “serve as the basis, or part of the basis, for a performance-based action.”

However, the word removal in this context does not mean removal from Federal service (also known as firing); it is removal from the SES, and in cases of unacceptable performance, the SES member has a guaranteed placement right to a non-SES career civil service position. This right to placement does not exist if the SES member is removed for misconduct.

If an SES member is performing unacceptably, the process generally follows these steps:

1 – The agency issues final rating of unsatisfactory or its equivalent (Level 1 in most agencies), at annual rating time or sooner, if the agency has an adequate basis to rate the employee, as detailed above.

2 – The agency notifies the SES member, in writing, of the impending “removal” from the SES, at least 30 days in advance of the removal date. The notice must contain:

  • The reason(s) for the action.
  • The effective date of the action.
  • The employee’s placement rights and information on the position to which the employee will be moved. The placement may be:
    1. A reassignment or transfer to another position within the SES, or
    2. Removal from the SES and placement into a GS-15 or equivalent position, with SES saved pay.

According to OPM, SES saved pay is set at the highest of three alternative rates –

  1. Rate of pay for the position in which the employee is placed;
  2. Rate of pay for the position from which the employee was appointed to the SES; or
  3. Rate of pay earned immediately before removal from the SES
  • Notice of the right to request an informal hearing from the MSPB at least 15 days before the removal is effective (although such an opinion is advisory only and is not binding on the agency). If applicable, the notice must also include the employee’s eligibility for immediate retirement under 5 U.S.C. 8336(h) or 8414(a).

3 – The SES member is placed into the new position on the effective date. Those SES members who held a career or career conditional appointment immediately before entering the SES are entitled to an appointment of equivalent tenure. Those who did not hold such an appointment before SES (for example, they were hired from the private sector) may be appointed using Schedule B authority under 5 CFR 213.3202(m).

There is no traditional MSPB appeal right for a performance-based “removal” from the SES. If the SES member is placed into a GS-15 position and then performs unacceptably, chapter 43 performance procedures would apply.

But wait! We’re not done yet.

Here are a few other odds and ends:

Marginal performance won’t cut it. The SES member receives two final ratings of unsatisfactory within 5 consecutive years, or two final ratings of less than fully successful (a Level 2 rating) within 3 consecutive years, that employee must be removed from the SES and placed in a GS position – they may not be reassigned or transferred to another SES position.

Moratoriums exist. A career SES member may not be reassigned or removed from the SES within 120 days after appointment of a new agency head or of a new noncareer who is the initial rater for the career appointee, unless the reassignment or removal is based upon a final rating of unsatisfactory completed before the moratorium began. This is to protect the SES members from political motivations.

Not demotions, but pay decreases. If an SES member receives a less than fully successful rating or otherwise fails to meet requirements of a critical element and remains in the SES, the agency may reduce the employee’s pay by up to 10 percent, subject to the 12-month restriction on pay adjustments. 5 CFR 534.404(j). Hopkins@FELTG.com