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COVID Retaliation: What You Need to Know

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By Michael Rhoads, December 7, 2021

Last month, the EEOC updated its guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws under Section M. Retaliation and Interference. The anti-retaliation protections outlined in the guidance only apply to the exercise of rights under the federal EEO laws.  The questions and corresponding answers are meant to guide federal agencies when considering the rights of job applicants, employees, and former employees in connection with COVID-19.

Some of those questions are below, along with our thoughts and EEOC’s answers:

Do job applicants and employees (including former employees) have protections from retaliation for exercising equal employment opportunity (EEO) rights in connection with COVID-19?

According to the EEOC guidance: “Speaking out about or exercising rights related to workplace discrimination is called ‘protected activity.’ Engaging in protected activity, however, does not shield an employee from discipline, discharge, or other employer actions taken for reasons unrelated to the protected activity.”

For examples of COVID retaliation join Katherine Atkinson on Wednesday, January 19 from 1:00-2:15 PM ET for the webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace

Who is protected from retaliation?

The retaliation protections apply to all types of employees including full-time, part-time, probationary, seasonal, and temporary. It is also important to note that an employee’s or applicant’s citizenship or work authorization status is not a factor when considering retaliation protections.

When do Retaliation protections apply?

Always. When considering retaliation protections, consider whether the employee or applicant has a reasonable belief that an EEO law has been violated in the workplace. The employee or applicant must also come forward with those beliefs in a “reasonable manner.”

When is an employer action based on an employee’s EEO activity serious enough to be unlawful retaliation?

This is the hardest question to answer, but if it looks like a duck, and quacks like a duck, it’s a duck.  Per the EEOC’s guidance: “Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity.” Examples include suspensions, denying a promotion, negative or less than favorable evaluations, and transfers. Retaliation can also take place outside of the workplace. An action by the employer is still considered retaliatory even if the employee or applicant moves forward with an EEO complaint or complaint-related process.

Does this mean that an employer can never take action against someone who has engaged in EEO activity?

No.  If an employer takes action against an employee or applicant who has engaged in EEO activity, the action must be based on the employee’s or applicant’s conduct or performance.

For example, if an employee’s performance slips, or if the employee makes harassing statements to co-workers, employers may respond with appropriate action.

Does the law provide any additional protections to safeguard ADA rights?

Yes. For example, if an employee or applicant asks for a religious accommodation for an FDA-approved vaccine, this type of accommodation request is covered under the ADA. Employers should engage in their agency’s reasonable accommodation process in such circumstances.

An important reminder comes at the end of the question-and-answer segment: “The employer’s actions may still violate the ADA’s interference provision even if an employer does not actually carry out a threat, and even if the employee is not deterred from exercising ADA rights.”

Happy Holidays, and I’ll see you back here in the New Year. Stay safe, and remember, we’re all in this together.  rhoads@feltg.com

What are Management Rights?

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By Michael Rhoads, November 16, 2021

If your agency’s union hasn’t already started the process of renegotiating your collective bargaining agreement, then now is the time to consider what your strategy will be when the union does come calling.

When it comes to negotiability, management holds most of the cards. Management typically determines whether a union proposal must be bargained, whether an arbitrator’s award is improper because it abrogates a management right, and whether management-initiated changes must be bargained substantively, or only as to its impact and implementation.

Luckily, management rights are already outlined in 5 USC 7106(a).

(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency—

(1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and

(2) in accordance with applicable laws—

(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;

(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;

(C) with respect to filling positions, to make selections for appointments from—

(I) among properly ranked and certified candidates for promotion; or

(ii) any other appropriate source; and

(D) to take whatever actions may be necessary to carry out the agency mission during emergencies.

One recent example of how the FLRA has decided on management rights is Indep. Union of Pension Emp. for Democracy & Just., 72 FLRA 281 (2021). The Authority ruled in favor of the agency terminating a special achievement awards program, which interfered with management’s right to determine its budget.  However, Chairman DuBester partially dissented because the program does not dictate the amount the Agency must allocate to its overall awards budget.  Rather, it determines the portion of this budgeted amount that will be devoted to a particular type of award.  FLRA Quarterly Digest Report: April 1, 2021 – June 30, 2021.

To catch you up on the latest FLRA decisions and the current state of federal LR, mark this date on your calendar: January 13. We’ll be announcing a two-hour LR training program shortly. Keep an eye on FELTG’s website for more details.

Happy Thanksgiving, stay safe, and remember, we’re all in this together. rhoads@feltg.com

I Wouldn’t Ask That if I Were You: Pre-employment Questions to Avoid

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By Michael Rhoads, October 20, 2021

Executive Order 14035 on Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce charges agencies with identifying “strategies to advance diversity, equity, inclusion, and accessibility, and eliminate, where applicable, barriers to equity, in Federal workforce functions, including: recruitment; hiring … and onboarding programs.”

Because the Federal government will be going on a hiring spree in the next several months, it might be a good time to consider what you can and cannot say during the hiring process. (Also see Training Director Dan Gephart’s article 5 Suggestions for Hiring the Right Person.)

Pre-employment inquiries are a critical stage where the wrong question, whether on an application, in an interview, or on a reference check, can lead to legal action if the applicant is not selected for the job. When seeking information from an applicant, ask yourself: “Does the information pertain to an essential job function?”

For example, if a person is applying for a warehouse position where most packages weigh up to 30 pounds, it is appropriate to ask an applicant if they can lift 30 pounds on an application form.

In Prohibited Employment Policies/Practices, the EEOC advises:

As a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; whereas, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations.

The EEOC also has some notable advice when it comes to the gray areas regarding an applicant’s race, marital status, or disability.

Race

It is prohibited by law to consider a person’s race when applying for a job. At the same time, agencies and employers are asked to keep track of demographic information, including race, that is reported to the EEOC. The EEOC advises to keep this information separate from the applicant’s information.

One example of this would be to use a “tear-off” sheet when collecting demographic information, and file it separately.

Marital status, children

Our personal relationships are an intricate part of our private lives, but these relationships are off limits when it comes to pre-employment questions. Typically, these questions have been used to discriminate against women. Yet, an agency is not off the hook if the same question is asked of both men and women. EEOC’s short list of topics to avoid related to marital status and children are:

  • Whether applicant is pregnant.
  • Marital status of applicant or whether applicant plans to marry.
  • Number and age of children or future child-bearing plans.
  • Child-care arrangements.
  • Employment status of spouse.
  • Name of spouse.

Disability

This is one topic where EEOC’s guidance is cut and dry. “Employers are explicitly prohibited from making pre-offer inquiries about disability.”

There are some pre-offer questions related to reasonable accommodation that are permitted, however. If an applicant has an obvious or voluntarily disclosed disability or need for accommodation, an agency may ask limited questions related to how to accommodate the applicant.   A full list of recommendations on these and other pre-employment inquiries can be found on the EEOC’s website at EEOC Prohibited Employment Policies/Practices.

Once a conditional offer is extended to an applicant, the rules change slightly.

To get a better understanding of what you need to know throughout the hiring process, join Katherine Atkinson on October 26 from 1:00-4:30 ET for Nondiscriminatory Hiring in the Federal Workplace: Advancing Diversity, Equity, Inclusion and Accessibility.

Stay safe, and remember, we’re all in this together. Rhoads@FELTG.com

 

Be Careful What You Ask for – And How You Respond

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By Michael Rhoads, September 14, 2021

I’ve always regarded Labor Relations like the old Rubik’s Cube. There are a seemingly endless number of twists and turns before arriving at the final solution. I admire the tenacity of those who have made a career out of LR.  It’s not for the faint of heart, especially when engaged in “robust debate.” And to make it even more interesting for those practicing LR in Federal agencies, the message from the top-down changes with each new Presidential administration.

Permissive Bargaining

Since President Biden revoked The Presidential Memorandum of October 11, 2019 (Executive Orders 13836, 13837, and 13839) in Executive Order 14003, management has been asked to operate under a new set of bargaining rules. The Biden administration even set the tone by stating: “It is also the policy of the United States to encourage union organizing and collective bargaining.”

Of particular note in EO 14003 is section 4. Ensuring the Right to Engage in Collective Bargaining. “The head of each agency subject to the provisions of chapter 71 of title 5, United States Code, shall elect to negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1) and shall instruct subordinate officials to do the same.”  This is a 180-degree turn from the previous administration, who said the agency “may not negotiate” over the subjects of 7106(b)(1).

OPM also issued a memo on March 5, 2021 in support of the topics covered in 7106(b)(1). “In order to implement the policies of the Executive Order, agencies shall agree to bargain over the substance of §7106(b)(1) subjects, whether at the union’s request (e.g., midterm bargaining request) or as the result of a proposed agency action (e.g., union responding to an agency notice of a pending change subject to collective bargaining).

Requests for Information

The new permissive bargaining sets the stage for new negotiations between management and the unions representing bargaining unit employees.  During these negotiations, the union will most certainly request information from management. Requests for information can sometimes feel like the children’s book If You Give a Mouse a Cookie: one request leads to another, and another, and another, ad infinitum.  But no matter how many requests a union submits to management, they must demonstrate a particularized need for the information.

The types of information a union can request from management are covered in 5 USC 7114(b)(4):

(4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data—

(A) which is normally maintained by the agency in the regular course of business;

(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and

(C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining

If you’re a labor relations specialist looking for best practices on how to negotiate in this new climate, look no further.  Join my colleague, Ann Boehm on Friday, October 1, 2021 for 2 sessions Permissive Bargaining from 11:15-12:30 PM EDT, and Requests for Information from 1:30-2:45 PM EDT.  And be sure to check out our other topics in our upcoming end-of-FY virtual event Federal Workplace 2021: Accountability, Challenges and Trends, which runs from September 27 – October 1.

 

As this fiscal year comes to a close, I wish everyone a productive September. Be safe, and remember, we’re all in this together. Rhoads@feltg.com

 

And Now a Word With … Marcus Hill, on Resolving Conflicts Before They Lead to Litigation

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By Michael Rhoads, August 18, 2021

‘She hit me!’ ‘Don’t touch me!’ ‘I’m not touching youuu…’ ‘You’re so annoying!’

My children are now out of diapers and forming their own opinions and developing their own interests.  Among the three of them, they are a fun-loving, carefree bunch.  But no matter how much they love each other, the occasional argument over the new toy, or simply vying for mom and dad’s attention can get heated from time to time. My wife or I will step in to resolve these little spats, and then we move on with our day.

Conflict is unavoidable at any age. Even after we’ve grown up and start our careers, there will always be someone you work with who may pose a greater challenge than others. I recently spoke to Marcus Hill (pictured above), FELTG instructor and Principal of Hill Management Consultancy (HMC) LLC, about his experiences related to conflict management over his 37-year career in the Federal civil service.

MR: What is the most common type of conflict in the workplace?

MH:  In my experience, the most common type of conflict in the workplace relates to assignment or task interdependences in which employees must coordinate, interface or team to accomplish them. Think about it. If you are a part of a work unit in which your job responsibilities typically require you to perform independently, no problem. However, if what you do requires you to interface, coordinate, rely upon or team with others, that just might be a problem.

MR: How can you promote a more harmonious environment for all?

MH:  I will respond to this question from the standpoint of any employee within a working environment, whether non-supervisory or supervisory. I believe it is imperative to possess and demonstrate the ability to effectively lead oneself first, in the workplace. Let’s unpack that a little.  It starts with understanding yourself and how you relate to others. Being knowledgeable of and practicing emotional intelligence.  Also having an awareness of your personality type and sense for others in the workplace can also be beneficial to harmonizing employee engagements. By demonstrating behaviors you desire others to emulate, you have an opportunity to influence co-workers’ actions from wherever you are in the organization. Simply put, “walk the talk.” Typically, high-performing, harmonious organizations are saturated with employees that have invested in the organization’s vision, actively engaged in achieving its mission and aligned behaviorally with the business unit’s core values.

MR: Is there a one-size-fits-all approach to conflict management?

MH:  Based on the various natures and intricacies related to conflict, I don’t believe there is a one-size-fits-all approach managing them.  However, there are proven strategies, methodologies and processes that can be used to effectively address conflict.  I will be addressing some of these in my upcoming training delivery, Resolving Conflicts Before They Lead to Litigation!

MR: What is the best tool in your toolbox for managing conflict between employees?

MH:  Active listening is the most effective tool for managing conflict between employees. To quote Dr. Stephen Covey: “Seek to understand before being understood.” By exercising active listening during conflict, the parties have the best opportunity to identify and address the specific, not perceived, issue(s) at dispute. Many times, the parties are focused more on defensive posturing to justify their actions in response to what they perceive the problem to be, reacting on filtered information. The goal is to be cognizant of the symptoms stemming from the conflict but focus on identifying and addressing the root cause creating it.

MR: What role does management play in resolving disputes between co-workers?

MH:  Management plays a primary role in resolving disputes between co-workers. By creating a working environment that establishes an organizational culture, reflective of values, that promote harmony, managers can set the tone for healthy debate instead of unproductive disputes.

Be more effective in resolving conflict at your agency!   Join Marcus on Wednesday, September 30 from 11:15-12:30 PM ET for Resolving Conflicts Before They Lead to Litigation. Click here to view our other courses during Federal Workplace Week 2021: Accountability, Challenges and Trends.

Stay safe.  And remember, we’re all in this together. Rhoads@FELTG.com

Return to the Office and the Telework Tango

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By Michael Rhoads, July 21, 2021

When I was a Rotary foreign exchange student in Argentina, the hardest thing this Yankee with two left feet did was learn the basic step of the tango – an intimate and graceful dance once mastered. The key to dancing the tango well is learning how to communicate to your partner the next step you want to take to avoid stepping on toes – or even worse, tripping over one another altogether.  Just like any novice, I had my fair share of trips and sore toes while learning.

The pandemic forced us to learn new moves and ways of working. Now that we’ve learned how to telework, employees and managers alike are now faced with a new question: How much telework is the right amount?

Return to Work?

This return to work will not be as cut and dry as simply returning to the office and resuming what was once considered “normal.” After successfully teleworking for over 16 months, many employees will want to retain some of the flexibility that telework provides.

Federal agencies are in the phased re-entry period, defined by the Biden Administration for the White House as July 6 – July 23.  FELTG recently hosted a webinar dedicated to getting your agency’s return to work guidance ready, which was due July 19th.

It will be important for you to look at your agency’s guidance when considering an employee’s request for telework. In the meantime, OMB has offered some guidance and recommendations. When dealing with employees who are currently teleworking, OMB recommends flexibility. M-21-25 states the government is: “Open with maximum telework flexibilities to all current telework eligible employees, pursuant to direction from agency heads.”  When scheduling telework, consider whether in-person work is necessary to “satisfy business operations, team-building, and other needs.” During the transition back to the office, your agency may also authorize telework for those with dependent care obligations.

Some employees are ready to return to the camaraderie and in-person interaction with co-workers. To ease the transition, some agencies have offered voluntary return-to-work as offices allow for increased capacity.

The Way Forward

The working relationship between managers and employees is as intertwined as two tango dancers.  There may be times you trip over one another but remember: Communication is the key.  If that communication is clear, you can avoid stepping on each other’s toes when the telework requests start to come in from employees.

While your agency is still trying to master the new telework dance, FELTG has looked at all the complexities of telework, and how your agency can navigate the changes and requests as employees transition back to the office.

Join us July 26-30 for The Post-Pandemic Federal Workplace: Managing Accountability and EEO Challenges. Our event will cover a broad array of telework challenges:

  • Holding teleworkers and other remote workers accountable for performance and conduct
  • Special telework performance and conduct challenges
  • OPM’s telework flexibilities; telework as reasonable accommodation
  • Agency options when employees refuse to report to the physical workplace

I’ll see you at the next milonga, and remember, we’re all in this together.  Rhoads@feltg.com

Return of the Inspector General

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By Mike Rhoads, June 16, 2021

At the end of the previous administration “at least a dozen of the 38 presidentially appointed inspectors general” positions were left vacant. Now that the transition dust has settled and a new Presidential administration has taken hold, members of Congress have started to re-examine the role of the Office of Inspector General.

A couple of bills have proposed changes to The Inspector General Act of 1978.

Legislative Support from Congress

Nextgov reported that “new legislation in Congress to support IG subpoenas The Inspector General Testimonial Subpoena Authority Act, introduced by Sens. Maggie Hassan, D-N.H., and Chuck Grassley, R-Iowa, would empower IGs to subpoena former federal officials, as well as contractors and grantees, for in-person testimony.”

The current law only allows IGs to subpoena current Federal employees, while the new law would allow IGs to pursue those who leave the Federal service in US District Court.

Sen. Grassley said: “This bill empowers inspectors general to compel testimony from former employees so bad actors in government can’t simply run from accountability by exiting government.”

Another bill recently proposed by Rep. Carolyn Maloney, D-N.Y., Chairwoman of the House Oversight and Reform Committee, Majority Leader Steny Hoyer, D-Md., and other Democratic House members is the IG Independence and Empowerment Act. As reported in Government Executive, the bill would amend the 1978 Inspector General Act and do the following:

  • Only allow IGs to be removed for cause.
  • Require a president to notify Congress before an IG is put on non-duty status.
  • Require only current IGs or senior IG staff to serve as acting IGs.
  • Add information the Council of Inspectors General on Integrity and Efficiency must include in its reports to Congress and make more of its information available to Congress.
  • Give IGs the authority to subpoena witnesses who aren’t current government employees (such as those who previously served in government).
  • Allow the Justice Department IG to investigate misconduct by the department’s attorneys instead of Justice’s Office of Professional Responsibility.
  • Expand whistleblower training for employees in IG offices and IGs themselves.
  • Require notifications to Congress and CIGIE about an IG’s ongoing investigations when an IG is put on non-duty status.
  • Give CIGIE a single appropriation.
  • Require IGs to alert Congress if agencies deny their access to information requested.

Amendments were introduced which sought to modify the provision on subpoena authority, and the provisions regarding presidents removing IGs, limitations on who can serve as acting IGs, and subpoena authority for IGs. These amendments were ultimately voted down. Stay tuned to see if these reforms make their way through the legislative process.

New Tools for IGs Needed

In addition to legislative protections, Inspectors General need up-to-date tools to keep up with the demands of modern data analysis. IGs may still have to comb through boxes of subpoenaed papers, but the data requested is often complex and too voluminous to go through each document individually, whether in physical or digital form. A modern workforce requires innovative, digital tools for the OIG to do its job efficiently and effectively.

In a conversation on Federal News Network, Steven Burke, the chairman of the Investigation subcommittee of the Technology committee of the Council of Inspectors General on Integrity and Efficiency (CIGIE), said, “one of the ways to overcome those challenges is with good business relationships among government customers and external data owners.

“The Digital Accountability and Transparency Act of 2014 and more transparency of government information on websites such as IGNET.gov, which is hosted by CIGIE, Oversight.gov and the White House; to government transparency of COVID-19 pandemic relief spending are all good opportunities to see where information is going.”

Momentum has shifted for the Inspector General community. Their work keeps our government from riding off the rails and keeps the ship of state upright and moving in the right direction. An OIG’s mission is fundamentally bipartisan and should not be influenced by shifting political winds.  They should be given the necessary tools to ensure the work of the people’s government is not misused or mistreated.

The job of IGs and their staff is often misunderstood. To better understand the relationship between the Office of Inspector General and its agency, join Scott Boehm on June 24 from 1 – 2:00 pm ET for Not a One-Way Street: How OIGs and Agencies Can Successfully Work Together.  Find out how your Office of Inspector General is working to make your agency a better place.

Stay safe, and remember, we’re all in this together. Rhoads@FELTG.com

EEOC Hearing: Pandemic Created Civil Rights Crisis for Many Employees

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By Michael Rhoads, May 19, 2021

As Meghan shared this month, on April 28, 2021, the EEOC held a Hearing on the Civil Rights Implications of the COVID-19 Pandemic. Several experts weighed in on how the EEOC can assist workers and employers as we move forward toward reopening the physical workspace and addressing the civil rights crisis exacerbated by the pandemic.

The experts who gave testimony touched on an array of topics, such as helping caregivers return to the workforce, increasing empathy in the workplace, sexual harassment during the pandemic, predictions as to when employees will return to the physical workplace, and how to help teleworkers.

In her opening statement EEOC Chair Charlotte A. Burrows stated: “The purpose of today’s hearing is to examine the workplace civil rights implications of the COVID-19 pandemic. The past 12 months have been frankly, incredibly difficult for the American people. It’s been clear for some time that the pandemic is not only a public health and economic crisis, but truly a civil rights crisis. While every single one of us has experienced challenges during this pandemic, it’s important to recognize that the pandemic hasn’t impacted everyone in the same way. The COVID-19 crisis has exposed and intensified existing inequalities in our society. As employers seek to juggle telework, keep employees safe and stay up to date with the latest public health announcements, to name just a few of the challenges, we should help them as much as possible to understand specific equal employment opportunity issues arising due to COVID-19.”

Returning caregivers to the workplace

Childcare providers have been especially impacted by the pandemic causing them to leave the workforce or reduce the number of working hours.  Commissioner Andrea R. Lucas asked Ms. Fatima Goss Graves, President and CEO, National Women’s Law Center, to address these concerns by asking her directly: “What best practices do you recommend employers implement to handle applicants with extended gaps in employment either due to the pandemic or caregiving obligations in general?”

Goss Graves pointed to a current trend where some employers have outsourced their hiring process using AI technology, which would automatically eliminate applicants with employment gaps.  This may have a disparate impact on women who may have needed to take time off during the pandemic to care for a child, spouse or other family member.

“One in six childcare providers left during this pandemic and have not yet fully come back,” Goss Graves said. So if you have a rule that’s going to have a disparate impact on women outsourcing. It is not a solution.”

Harassment during the pandemic

Commissioner Keith E. Sonderling asked Goss Graves about the “new and unique types of harassment” are appearing as a result of the pandemic.

“What we have found is that in our intake at the TIMES’S UP Legal Defense Fund, is that about 7 out of 10 people report that when they experience harassment, they are also experiencing retaliation when they try to use their employer’s systems,” Goss Graves said. “But I do think it’s important to speak to what harassment is looking like in the context of COVID. People might be under the misimpression that just because people are working virtually that harassment doesn’t occur. It’s occurring, it just happens virtually.”

A more empathetic workplace

Johnny C. Taylor, president and CEO for the Society for Human Resource Management said American workforce us facing “an empathy deficit today … that significantly impairs our ability to provide every American worker equal opportunity to work and to do so free from harassment and discrimination.”

He continued, “Think about it. We’ve had laws on the books forever about sexual harassment and other workplace forms of discrimination. But at the of the day, it is empathy that keeps us all doing the right thing.  Building our empathy muscles will be critical to economic and business recovery because empathetic workplace cultures retain the best and perform the best.”

[Editor’s note: If you are looking to promote diversity and inclusion in your unit, join our newest faculty member, Marcus Hill, with Deb Hopkins and Bob Woods on June 16-17 for The Supervisor’s Role in Diversity, Inclusion and EEO Compliance.]

Taylor predicted there will be two waves of workers returning to the workplace.  The first will be after the July 4 holiday and the second will be after Labor Day.

He predicted the second wave, after Labor Day, will be larger, “because presumably children will be going back to school and there’ll be less childcare concerns for our employees who are having to take care of their children who can’t find the appropriate childcare and or schooling.”

Supporting teleworkers

 While the pandemic has necessitated working from home for those with job flexibility, some employees have felt isolated and depressed without the daily interaction that occurs in the workplace.

“As extended remote work continues for some personnel, and we are doing that, we are seeing gains in the percentage of employees across industries, experiencing depression, hopelessness, feeling of failure and reduced concentration.” Taylor said. “All of that obviously directly impacts an employer’s product and/or services. EEOC’s partnership in establishing best practice guidance when safely returning employees to physical work sites, safety standards, and vaccination education are areas where the EEOC could assist stakeholders during their operational analysis.”

FELTG instructor Shana Palmieri will tackle this on July 21, 1:00-4:30 PM ET in Dealing With Employee Mental Health Challenges During and After the COVID-19 Pandemic.

In a press release, Chair Burrows concluded: “Today’s testimony makes clear that, while the pandemic continues to have serious impacts on public health and our economy, it has also created a civil rights crisis for many of America’s workers.  All of us have a critical role to play in our economic recovery. We must come together to ensure that all employees can work free of discrimination and that everyone who wants to work has equal employment opportunities.”

We here at FELTG will give you up to date information from the EEOC and provide training that will support your agency’s mission.  FELTG is currently offering several presentations related to diversity, equity, inclusion and accessibility (DEIA). These trainings meet the President’s mandate to provide DEIA training in the Federal workplace.

Stay safe, and remember, we’re all in this together. rhoads@feltg.com

What Is Diversity, Equity, Inclusion, Accessibility (DEIA)?

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By Michael Rhoads, April 20, 2021

Biden administration has set a striking tone when it comes to Diversity and Inclusion. OPM has always taken a lead role in defining Diversity and Inclusion, which it has now expanded to include two other related concepts, Equity and Accessibility. OPM defined its role in its March 8 memorandum, “Moving forward, OPM will play a critical leadership role in the Administration’s governmentwide efforts to advance diversity, equity, inclusion and accessibility (DEIA) and we encourage all agencies to continue DEIA activities which include training and educating your workforce.” But what does that mean for you and your agency?

Let’s start by looking at what each term means:

Diversity – This is a well-established field in federal agencies. I found a comprehensive definition of diversity in OPM’s Guidance for Agency-Specific Diversity and Inclusion Strategic Plans. It states, “workforce diversity is a collection of individual attributes that together help agencies pursue organizational objectives efficiently and effectively. These include, but are not limited to, characteristics such as national origin, language, race, color, disability, ethnicity, gender, age, religion, sexual orientation, gender identity, socioeconomic status, veteran status, and family structures. The concept also encompasses differences among people concerning where they are from and where they have lived and their differences of thought and life experiences.” Diversity in the Federal workforce is established, but because people aren’t perfect, it needs attention and follow up to ensure standards are maintained.

Equity – A renewed focus on equity began on day one of the Biden Administration. On Jan. 20, 2021, President Biden issued Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, which states, “the Federal Government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.”

The EO goes on to further clarify: “The term ‘equity’ means the consistent and systematic fair, just, and impartial treatment of all individuals, including individuals who belong to underserved communities that have been denied such treatment, such as Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality.”

OPM further clarified action items for agencies regarding equity in its March 8 letter. “Consistent with these aims, each agency must assess whether, and to what extent, its programs and policies perpetuate systemic barriers to opportunities and benefits for people of color and other underserved groups.”

Inclusion – Also a well-established concept in Federal agencies. Inclusion takes Diversity a step further, and is a call to action within the business culture of an agency. OPM’s Guidance for Agency-Specific Diversity and Inclusion Strategic Plans states, “a culture that connects each employee to the organization; encourages collaboration, flexibility, and fairness; and leverages diversity throughout the organization so that all individuals are able to participate and contribute to their full potential.” It further states OPM’s ultimate goal for workplace inclusion, “Cultivate a culture that encourages collaboration, flexibility, and fairness to enable individuals to contribute to their full potential and further retention.” Like diversity, inclusion is a work in progress.

Accessibility – Accessibility is traditionally thought of as Section 508 compliance, but the current administration is taking a broader look at who in society has access to and benefits from Federal programs, and is looking to provide broader access to communities and populations that have been underserved.

EO 13985 Section 2(b), “Underserved communities” refers to populations sharing a particular characteristic, as well as geographic communities, that have been systematically denied a full opportunity to participate in aspects of economic, social, and civic life …”

The EO also gives explicit guidance on the next steps agencies can take. Section 8: “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.”

Be the Change You Want to See

Nothing changes if nothing changes. Let’s begin the process of change by speaking to one another in an honest search for understanding. Education and training are the best way to alleviate misunderstanding. FELTG is focused on providing training that will promote Diversity, Equity, Inclusion and Accessibility.

Look for our DEIA logo in our course descriptions to update your SES, supervisors, attorneys, HR team, unions, and staff on the latest information, and get ideas on how to implement DEIA topics at your agency. Together we can make the Federal workforce the model employer it is meant to be, and lead the workforce towards a more diverse, equitable, inclusive and accessible future for all.

Our upcoming DEIA classes include:

  • Nondiscriminatory Hiring in the Federal Workplace, June 9, 12:30 – 4:00 pm eastern
  • The Supervisor’s Role in Diversity, Inclusion and EEO Compliance, June 16-17, 12:30 – 4:00 pm eastern
  • Honoring Diversity: Ensuring Equity and Inclusion for LGBTQ Individuals, June 23, 1:00 – 3:00 pm eastern
  • Webinar Series – Reasonable Accommodation in the Federal Workplace – July 15 – August 12, 1 PM eastern, 5, 1-hour Sessions each Thursday.

Stay safe, and remember, we’re all in this together. rhoads@feltg.com

As Forecast, Flurry of Executive Orders Accumulate for Federal Workplace

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By Michael Rhoads, February 10, 2021

Winter has made its presence known this year. Here in the Northeast, my friends and family have had the pleasure of receiving more snow in one storm than we have in the past two years combined. President Biden has also made his presence known with a flurry of Executive Orders.

The Executive Order has been the tool for the past few presidents to achieve political goals without having to go to Congress for approval. At the beginning of any new administration, changes via Executive Order can be expected.

Last month, I took a stab at forecasting how some of the Trump Administration’s Executive Orders would fare in the Biden Administration, so here’s and update on how some of those predictions played out.

Labor Relations

As predicted, EOs 13836, 13837, & 13839 – the Trump Administration’s orders affecting Labor Relations – were rescinded. However, agencies are taking a cautious approach to implementing the Biden Administration’s EO and are waiting for further instruction before proceeding. FELTG will have courses throughout the year to help you navigate any labor relations changes, but our FLRA Law Week, May 10 – May 14 will give you the most comprehensive review.

Schedule F

My initial read on Schedule F was it might survive, even if only in part.  However, Schedule F was rescinded by the Biden Administration via Executive Order. According to Erich Wagner, no agency was able to re-classify employees into Schedule F, but agencies will have to assess whether or not political appointees may have “burrowed in” to civil service positions.

In addition to the Executive action, a bi-partisan bill has also been proposed in Congress which would prohibit any future actions implementing anything similar to Schedule F. The Preventing a Patronage System Act seeks “to impose limits on excepting competitive service positions from the competitive service, and for other purposes.” The bill also seeks to keep any positions from being moved out of schedules A – E as they were defined on Sept. 30, 2020.

To learn more about the most recent Executive Orders and how to implement them, join Deb Hopkins and Ann Boehm on Thursday, Feb. 25 at 2:30 pm ET for Changing Course: Understanding the Biden Executive Order on Labor Relations, Performance, Discipline, and Schedule F.

As always, stay safe, and remember, we’re all in the together. Rhoads@feltg.com