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Tell Me This is Not Crazy

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By William Wiley, January 24, 2018

I don’t care which side of your bread is buttered, you have to admit that our current system of oversight is a pretty poor way to set up protections for federal civil servants. Consider the following:

  1. Congress so loves the civil servant and wants those individuals in federal employment to be protected from mistreatment by their managerial overlords that it has passed several laws to provide protections:
    • It is illegal for agency managers to mistreat employees because they have filed complaints alleging civil rights discrimination: 42 USC 2000e et seq.
    • It is illegal for agency managers to mistreat employees because they have filed grievances: 5 USC 2302(b)(9)(A).
    • It is illegal for agency managers to mistreat employees because they have engaged in union activity: 5 USC 7116(a)(1).
  1. Congress, in its wisdom or folly, has established at least three institutions to make sure that the above laws are not broken:
    • The US Equal Employment Opportunity Commission has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously filed a discrimination complaint.
    • The US Office of Special Counsel (in collaboration with the US Merit Systems Protection Board) has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously filed a grievance.
    • The Federal Labor Relations Authority has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously engaged in union activity.

Let’s take a non-hypothetical employee who believes that his agency has mistreated him on 40 separate occasions.; e.g., Letters of Warning, failure to accommodate a disability, his supervisor laughed at him … the typical list of reprisal actions. He sees a big poster on the agency’s Official Bulletin Board advertising the rights employees have to file discrimination complaints, and so he does. He believes that he has been mistreated because he has previously filed complaints alleging civil rights discrimination.

As the discrimination process works, he gets to make his arguments to an investigator, then an EEOC judge, and then to the EEOC headquarters unit that oversees federal employee claims of reprisal. And after TEN YEARS, he gets his answer. Indeed, there was reprisal against him on the part of the agency. However, it was not because of his previously filing EEO complaints. Instead, the reprisal – according to EEOC – was because he:

  1. Previously filed a bunch of grievances, and
  2. Previously engaged in protected union activity.

No EEO discrimination here. Sean T. v. USPS, EEOC Appeal No. 0120150928 (December 5, 2017).

This individual (code named: “Sean T.” like some Irish rapper; “Hey, Big Sean T.! Hit me up with that ‘Irish Eyes are Smiling’ tune again. That thing’s dope!”) was employed by the U.S. Postal Service. Therefore, he did not have access to OSC or FLRA, as would a civil servant in another federal agency, but the result would have been the same if he did. EEOC does not have the authority to protect an employee who is mistreated by agency management, unless that mistreatment was motivated by the civil rights laws.

Poor Sean T. After a decade, he finally has an answer. He was not mistreated because he previously filed discrimination complaints. Oh, yes, my friend. He indeed was mistreated. But not because of civil rights discrimination. He just got himself into the wrong forum with his allegation, and thereby is back where he started in 2008 about the time Barack Obama first took the oath of the Presidency.

That seems like so long ago, doesn’t it.

Look. Here at FELTG, we’re not siding with Mr. Sean T. Frankly, he looks like someone who would be a pain to try to manage. Instead, we’re siding – as we always do – with the side of a fair and efficient government. This particular oversight scenario is neither fair nor efficient.

Somebody, please. Fix this. It’s not DACA, but it’s worth some amount of Congressional thought. Wiley@FELTG.com

Congressional Health Insurance and Your Children

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By “Just a Bill” Wiley, January 17, 2018

OK, Kiddies, here’s how government really works, and you won’t find a schematic of this in the back of your high school civics textbook (e.g., “I’m Just a Bill”).

  1. Way back in 2013, OPM granted an exemption to the requirements of Obamacare to members of Congress.
  2. A Senator thought that OPM’s actions were unjust, and demanded that OPM produce documents to support how it made the decision to grant the exemption.
  3. OPM did not comply. For years.
  4. In 2017, the White House nominated a new director of OPM, to replace the acting director.
  5. The disappointed Senator, seeing an opportunity to get the information he had been waiting on for since 2013, placed a hold on the OPM director’s nomination.
  6. About the same time, the White House decided that our great country had too many federal regulations. Therefore, it placed a semi-freeze on the issuance of new regulations by agencies. Agencies that don’t happen to have a current politically-appointed head in place had better be darned careful about issuing ANY new regulations by an acting director.
  7. Also about the same time, the statutory deadline for OPM to issue new regulations implementing the Notice Leave provisions of the Administrative Leave Act of 2016 came and went in September 2017.
    • Those new regulations, if implemented properly by OPM, will allow agencies to get potentially dangerous employees out of the workplace during the 30-day notice period of a proposed termination, thereby limiting their ability to kill people.

Which brings us to your children (or to the children you might conceivably have some day). A number of agencies have mistakenly concluded that Notice Leave cannot be used until OPM issues implementing regulations. Of course, that is wrong. As every student learns in that high school civics class we talked about earlier, a bill becomes a law when signed by the President. The effective date of the new law is NOT delayed until regulations are issued, unless the law itself so states. And the Administrative Leave Act of 2016 did not delay its implementation. Therefore, agencies have had the authority to use Notice Leave to get dangerous people out of the workplace since the President’s signing of the bill over a year ago.

Unfortunately, you might work in one of those agencies that has not implemented Notice Leave because OPM has not yet issued the regulations it was required by law to issue no later than September. If that is the case, and you are keeping bad employees in the workplace during the 30-day notice period of a proposed removal, you are exposing yourself unnecessarily to a potential 30 days of violent behavior. In our great country, violent behavior sometimes involves guns, explosives, and death.

You can tell we feel strongly about this here at FELTG. We want everybody’s children to have a mom and dad to grow up with, to teach them how to live, and how to apply for good government jobs when that time comes. If you are the victim of workplace violence caused by your agency’s failure to implement Notice Leave (because we don’t have OPM regulations, because we don’t have an OPM director, because OPM granted an exemption to Congress relative to Obamacare), our heart breaks.

Government is supposed to work. This is not government working. When you get home tonight, be sure to hug someone close to you. Because you just never know when you’ll get the next chance. Wiley@FELTG.com

Who ARE Those People with Pending MSPB Appeals?

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By William Wiley, January 17, 2018

As most of us in this business know, the US Merit Systems Protection Board, our Supreme Court in the civil service, effectively has been shut down for over a year. There are three positions on the Board, we need at least two members to vote on a case for a decision to be issued, and since January 6, 2017, we have had only one Board member (due to the early resignation of the previous chairman).

There are two steps to an appeal to MSPB. After the agency takes an action – say, fires someone – the employee files an appeal with an MSPB judge. That judge conducts a hearing and issues a decision either upholding the removal, or setting it aside. That’s the first step.

The second step is that either the agency or the employee can appeal the judge’s decision to the three political appointees who sit as the Board. The members can either affirm the judge’s decision or change it any way they want. What comes out of all of this is that some removals are upheld and in others, the employee gets his job back with back pay.

Every work day of the year, three or four “petitions for review” are filed with MSPB HQ. Those PFRs are filed by either the agency or the employee; occasionally by both, arguing that the judge made a mistake. The effect of this lack of a quorum to review a judge’s decision is that PFRs go in, but no decisions on the PFRs come out. If you’ve ever had a backed-up drain pipe in your home, you have an appreciation for what this is like.

Talking about this mess in the abstract misses the point as to the magnitude of the harm caused by all of this. Utilizing the power of the Freedom of Information Act, we here at FELTG have obtained a profile of all those cases stuck in the pipe at MSPB since January 6, 2017. These are real people with real problems. These are agencies trying to maintain an effective workforce who might be on the hook for ever-increasing back pay and attorneys fees until these appeals are resolved. Keep that in mind as you think about the following select subsets of PFRs now pending for vote at MSPB:

Unacceptable Performers:  Of the approximately 750 cases pending a vote by the members as of today, 25 are appeals of the decisions of judges in Chapter 43 unacceptable performance removals. In this time of increased focus on performance accountability, the individuals in these cases deserve an answer, and we practitioners could use all the case law guidance we can get as to how to implement a performance-based removal.

General Misconduct:  Legally, these are called appealable “adverse actions.” These cases are almost always removals and involve bad behavior such as sexual harassment, falsification of government documents, theft, workplace violence, and just plain not coming to work. Many times, they involve claims by employees of mistreatment based on a disability or race. There are 345 former-employees awaiting a Board decision in these cases. Some appellants no doubt will be entitled to reinstatement with back pay, whereas others will remain fired, thereby allowing the agency to back-fill their positions. Add to these 20 former probationers who are appealing their removals, and you have about 365 removals that deserve to be decided (one for each day of 2017, if my math is correct).

Veterans:  Under two different laws, vets have a special right not to be mistreated because they served on active duty.  Because of a lack of a quorum, approximately 80 veterans are awaiting a decision as to whether they have been reprised against because of their service to our country. 

Whistleblowers:  Woo-whee; Congress does love those who disclose waste, fraud, and abuse in the executive branch. There’s even a special legal channel Congress has created for MSPB appeals of individuals who believe they have been reprised against because of their whistleblowing. It’s called an Individual Right of Action. Even individuals who simply help someone blow the whistle are allowed to use this specialized process. According to the latest information we can get, approximately 140 of the 750 jammed-up appeals at Board HQ are IRAs. You might think that Congress would be upset that these folks are not getting a final resolution to their claims of mistreatment. Of course, you might also think that Congress would look for common ground and collegial decision-making, but you would be wrong about that, as well.

ALJs: And finally, we see that four of the PFRs currently pending for a vote are proposed disciplines of that unique band of federal employees: Administrative Law Judges. Unlike regular civil servants who cannot appeal until their employing agency fires them (or takes some other appealable action), agencies who employ ALJs have no authority to discipline their ALJ employees. They can only propose to MSPB that the ALJ be disciplined, and the Board decides whether a removal or suspension will occur. Unlike the other appeals, there’s no accumulating back pay here. HOWEVER, the employing agency has already decided through its own internal processing that these four very important individuals are bad federal employees, but they can’t do anything about it until the Board finally acts. Somewhere these four individuals are sitting around drawing a federal salary every two weeks even though their employer thinks they should not.

This number of 750 represents the number of PFRs that have been reviewed by the MSPB career staff and are literally sitting in the front office of MSPB, on pause until just one more Board member is available to sign his or her name to the vote sheet, thereby causing a final Board decision to be issued. If a miracle were to happen and a super-human individual were to be confirmed as a Board member today, and that person miraculously could vote on 750 appeals in 24 hours, then 750 final decisions could be issued the next 24 hours and we’d be back to normal.

But wait; there’s more! Separately from the 750 PFRs waiting for a vote before the Board’s members, there’s another batch of pending PFRs currently being worked on by the HQ Board’s career attorney staff; PFRs that could be voted on today if the staff were to present them to the members for vote. When you add that group in, the total number of PFRs pending at MSPB headquarters as of today, extrapolating from our recently-responded-to FOIA request is … (ready the drum roll) … 1,400! That’s a full year’s worth of cases!

Hopefully as you read through this list, you used your imagination to picture members of each group. These are real people with significant legal rights who were hired to do real work for the government. It’s unfair to them and it’s unfair to us citizens, who appreciate an effective government, that these appeals are not being decided. Hopefully, the White House will soon see the righteousness in nominating a new member to the Board, someone who can hit the ground running, deciding along with the current Acting-Chairman whether the judges who heard these appeals initially made the right or the wrong decision.

And White House, if you’re reading this here article, please immediately nominate ONE not TWO new members. ‘Cause if you name two, it’s going to take twice as long to get concurrence with Chairman Robbin’s existing votes. Nominate one new member now, clear the backlog, then name a second (and then a third to replace Mr. Robbins once his term expires at the end of next month). Wiley@FELTG.com

Don’t Confuse News Articles with Legal Analysis

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By William Wiley, January 17, 2018

Oh, boy. Civil service stuff above the fold recently on page A-1 of the Washington Post. Career government employees don’t often rise to that level of awareness in the public eye. Sadly, the article published the last week of 2017 focused on an aspect of federal employment that we wish wasn’t so noteworthy: sexual misconduct in the federal workplace.

They tell you that once you graduate from law school, you won’t see the world the same ever again. For example, a normal person who is not encumbered by a legal education, upon seeing a car wreck, might think, “Oh, those poor people! I hope no one’s injured. I need to call 9-1-1 and then see what I can do to help out.” The first thoughts of a lawyer, upon seeing the same car wreck, might well be, “The west-bound vehicle was negligent in not slowing down for the yellow light, but the north-bound vehicle was speeding. Looks like contributory negligence to me. And the pain and suffering suffered by the by-standers who saw the incident is probably a significant consequential damage. I wonder how many business cards I have with me?”

This same automatic-legal-brain thinking comes into play when you read the Post’s article. First, the subtitles to the piece about sexual misconduct at the Department of Justice: “Systemic Issues in Harassment Cases: Report details a lack of disciplinary action.” From this, one might conclude that the article will be addressing sexual harassment as it was described in a recently-released DoJ IG report. Well, not exactly. For example, here are some of the primary incidents reported as described in the IG report:

  1. A supervisor sending harassing emails to a subordinate who had ended a sexual relationship the two were having.
  2. An employee who groped the breasts and buttocks of two coworkers.
  3. A supervisor who had consensual sex on several occasions in his government office.

If you’ve been to any of our FELTG seminars regarding sexual harassment (and we have done BUCKETS of them recently), you no doubt learned that the law defines sexual harassment in part as “unwelcome” sexual conduct. Clearly, the first two incidents meet that definition. However, nothing in the description of the third incident described the acts as being “unwelcome.” If they were not, then there’s no sexual harassment.

“What? You mean it’s OK to have sex in a government office? Why wasn’t I informed?” No, Poopsie. That’s not what we mean. If you’ve been to the FELTG seminar where we teach how to discipline a civil servant, you would have learned that if you have a rule, and an employee violates the rule, you can discipline the employee. Also, you’ve learned that in addition to published official rules (e.g., agency policies), you also can enforce “common sense” rules, also known as “rules of society.” Unless you have tolerated workplace sex in the past, it’s fair to say that you have a “common sense” rule that having sex in a government office is wrong. Therefore, the supervisor in incident number three above can be disciplined, but not for sexual harassment. Instead, the discipline should rest on the common-sense rule that federal employees are not to have sex in their offices. (You experienced practitioners are probably already thinking that the secondary charge should be “Waste of Government Time” if the acts occurred on the clock rather than after hours. See what I mean about a bit of legal education changing how you think?)

The next legal bump those of us with civil service experience run into is the suggestion in the article that although some of the offending employees were counseled or reprimanded, they should have been suspended or demoted instead; i.e., the agency did not select a severe enough punishment given the nature of the misconduct.

Again, experienced practitioners know that suspensions often hurt the agency more than they hurt the employee. The agency must forgo the employee’s services for the duration of the suspension, and often coworkers suffer by having to perform the work that the suspended employee normally would have performed. If discipline is intended to correct behavior rather than punish the employee, a suspension is of questionable value. As for a demotion, if an agency were to reduce an offending employee in grade, the agency would then have to accept lower-graded work from the individual. Well, maybe the agency doesn’t NEED lower-graded work. Maybe it needs the higher-level of work the employee is already performing. The somewhat cavalier conclusion that DoJ didn’t do enough because it did not suspend or demote the offensive employees fails to acknowledge the reality of the federal workplace.

Finally, the last wrinkle in the analysis in the article is the criticism that some of the offending employees received subsequent performance awards after the misconduct occurred. That might well be a concern and something that should be addressed. But stay with me: you can’t blame DoJ for giving awards based on performance without consideration of any misconduct. Read OPM’s award regulations at 5 CFR 451. According to OPM, awards are to be based on the employee’s performance plan or perhaps other goals set in advance. You’ll find no OPM guidance regarding the consideration of misconduct when making award decisions. The famous Douglas Factors that were developed by MSPB as guidance for agencies when selecting the appropriate level of discipline for misconduct, tie performance awards into the disciple-penalty determination as a mitigating factor. However, nothing from MSPB, OPM, or the courts requires that misconduct be considered when determining a performance rating.

The article in the Post highlighted several incidents of discipline-worthy sexual misconduct. Perhaps in retrospect DoJ should have been more aggressive in its responses to the incidents. Just be careful when assessing an article in the media that discusses civil service law. Not all sexual conduct in the federal workplace is sexual harassment, and disciplinary decisions relative to sexual misconduct are more challenging to make than simply saying that the offending employee should lose some pay. Wiley@FELTG.com

 

Is It Time for These Changes?

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By William Wiley, January 9, 2018

Every now and then, someone will ask one of us here at FELTG, “Hey, you guys claim to be so smart. What would you change in the system if it was up to you?” Obviously, anyone who would say this is unfamiliar with who we really are because “smart” is not an adjective that comes up on the short list, at least not before “a bit silly.”

That still leaves us with the question, what would we change if we had any influence at all as to how the government holds it employees accountable without rewriting the underlying law? Good question. And to start off the new year, here are some hopefully-good suggestions for those who actually do hold The Power. With the stroke of a pen – or a very few key strokes on a computer – here are some simple, yet game-changing, ideas:

OPM

  1. Here’s what the Civil Service Reform Act says about firing bad performers. Agencies must remove employees from their position who have unacceptable performance “only after an opportunity to demonstrate acceptable performance.” 5 USC 4302(b)(6). Back in the very-early 80s, some bright mind at OPM decided that this language called for a “Performance Improvement Period.” That thought gave birth to regulations and case law calling for a structured PIP, complete with a formal notice of failure, the establishment of “firm benchmarks” of expectations during the PIP, and counseling and feedback for a month or more during the PIP.

Well, the law never required that, did it?

Unless identified as a trainee position, we hire only qualified people into government positions. In theory, we hire only the best qualified and provide them a performance plan immediately after hiring. Therefore, they should be able to hit the ground running once in place. After that, several weeks to a couple of months should be adequate to meet the statutory requirement for an “opportunity to demonstrate acceptable performance” without the need of a formal PIP. OPM should rewrite its instructions as follows, consistent with the Reform Act and doing away with the requirement for a PIP:

5 CFR 432.104 Addressing unacceptable performance

The agency is required to provide the employee a periodic performance plan. Once the plan is in place, the employee must be provided an opportunity to demonstrate acceptable performance under the plan with assistance from the agency as necessary, a period generally lasting 30 to 60 days.  Any time after this period, if the agency determines that the employee is performing unacceptably in at least one critical element, the agency must initiate steps immediately to remove the employee from the position by either reassignment, reduction in grade, or removal from service.

For those of you faint at heart who think this approach might be un-American or otherwise un-Constitutional, it is effectively the new approach allowed for at DVA under 5 USC 7701. Congress wouldn’t pass an un-American law, would it? If it’s good enough for our DVA friends, it’s good enough for the rest of the federal agencies.

Alternatively, if OPM chooses to continue to insist that a formal PIP period be employed prior to removing an unacceptable performer, 5 CFR 432.104 should be amended by adding the following sentence at the end:

The opportunity to demonstrate acceptable performance period generally shall not exceed 30 days and can be ended at any time the employee demonstrates the inability to perform acceptably during the period.

  1. The Civil Service Reform Act creates an anomaly not easily explained. Once the agency provides an employee a notice of a proposed removal, the employee must be provided at least seven days to defend himself in a response. 5 USC 7513(b)(2). Once the employee exercises or waives that response right, the agency can effectuate the removal. However, for reasons unexplained in the law, the agency must continue to pay the employee for 30 days from the date of issuance of the notice even though it has already decided to fire him. 5 USC 7513(b)(1).

Unfortunately, a number of Federal managers do not understand the importance of making disciplinary decisions promptly. The flexibility in the law rarely makes for a more efficient accountable government. Therefore, OPM should modify its adverse action regulations as follows, appended to the end of the existing language:

5 CFR 752.404(c)(1) Procedures

Generally, agencies should provide an employee who has been issued a proposed action under this section a seven-day period to respond. Once the employee has either responded or waived the right to respond, the agency should make a decision on the proposal as soon as possible. In most cases, that decision should implemented as soon as the 30-day notice period has expired.

We have written separately and extensively that OPM should issue implementing regulations that make placement on Notice Leave automatic in cases of a proposed removal.   Additionally, we’ve argued that suspending employees is punitive and archaic, and should be avoided as being more helpful than harmful. No need to restate those suggestions here.

Agencies

Our experience here at FELTG is that within agencies, policies are often all over the map when it comes to implementing removals. If OPM does not make the above changes to government-wide policy, nothing prevents agency heads from doing essentially the same thing within agency policy:

  • Establish opportunity periods (PIPs) to be 30 days in length, terminable early if the employee demonstrates unacceptable performance during the period.
  • Mandate that decisions regarding unacceptable performance and discipline be made as soon as the notice time frames are completed.
  • Limit notice periods to seven days, routinely enforce Notice Leave during the notice period, and rarely grant extensions of time.

There are some great minds at work these days developing possible changes to our civil service system. Hopefully, those ideas – perhaps along with these – will encourage deep thought and appropriate policy action. Wiley@FELTG.com

This is Going to Blow Your Employment-Law Mind

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By William Wiley, January 3, 2018

Let’s talk burdens of proof for a few minutes, and along the way, we’ll test your knowledge. For you newcomers to this business, the burden of proof declares how much evidence an agency must have to discipline or fire someone from the federal government. The higher the burden of proof, the more work the agency must do, the longer it takes to prepare a decision, and the harder it is to defend the action on appeal. When given a choice, an agency will (or, should) pick the lower burden of proof every time.

Here are three proof-burdens that demonstrate the relativity of how much evidence is needed for a particular action. First is the official name followed in parentheses by the layperson’s way of saying the same thing:

  • Beyond a reasonable doubt (he certainly did it)
  • A preponderance of evidence (he probably did it)
  • Substantial evidence (he might have done it)

And here are three pop quiz questions to test your employment law knowledge. Get all three correct and you get a free annual subscription to the FELTG Newsletter plus free coffee at all of our open enrollment seminars for the year:

1. What is the agency’s statutory burden of proof when firing someone for unacceptable performance?

A. He certainly did it

B. He probably did it

C. He might have done it

D. None of the above

Answer: C. Every employment law practitioner and federal supervisor should know that almost 40 years ago, Congress made it drop-dead easy to fire a poor performer. It gets no lower than the he-might-have-performed-unacceptably standard. If the choice is to fire a bad employee for performance or misconduct, pick performance as you’re less likely to lose for lack of proof. See 5 USC 7701(c)(1)(A).

2. What is the agency’s statutory burden of proof when firing someone for misconduct?

A. He certainly did it

B. He probably did it

C. He might have done it

D. None of the above

Answer: B. Every employment law practitioner and federal supervisor should know this 51% standard. Unfortunately, most do not recognize how low this burden of proof is, even though bad federal employees are fired much more often for misconduct than for performance. See 5 USC 7701(c)(1)(B).

3. What is the agency’s statutory burden of proof when suspending someone for up to two weeks for misconduct?

A. He certainly did it

B. He probably did it

C. He might have done it

D. None of the above

Answer: D. “What?!? Wiley, you idiot. I’ve been working in federal employment law my whole career. I’ve attended your classes. I’ve read the book that you and Deb wrote. You teach that it’s a preponderance of the evidence, that the employee probably did it, that’s the burdent the agency needs to prove a short suspension. Are you saying that there’s no law that requires this burden?” Yes, Virginia, that’s right. There’s no Santa Claus and there’s no law that sets the standard of proof necessary to sustain a short suspension.

Well, then. It must be in an OPM regulation. Right? Wrong. Go read 5 CFR 752.202, the OPM regulations that lay out the standard for action for short suspensions. If you find a reference to a burden of proof there, your copy of the Code of Federal Regulations has been hacked.

So how did this epiphany come about after nearly 40 years of not seeing the obvious? Well, once again I have to give credit to a hard-working practitioner at DVA who, when trying to understand the limits of the new DVA law’s application, simply read the law and found this anomaly. We’re all in this together, and thanks goodness that DVA is sharing its experiences with the rest of us.

What can you do with this new information. assuming of course that you didn’t already know about it? Logic it through this way from an agency’s perspective:

  • Without the law or a regulation mandating a burden of proof, an agency would be free to establish its own proof burden for reprimands and suspensions up to 14 days.
  • DVA’s new law (38 USC 714(d)) tells us that there’s nothing fundamentally wrong with using the substantial burden of proof for disciplinary actions. If there were, Congress wouldn’t have passed the recent legislation.
  • Therefore, why would an agency NOT incorporate the substantial evidence burden into its own policy statements regarding adverse actions?

Here at FELTG, we try not to take issue with reasoned decisions by agency managers as to policy as long as those decisions are based on evidence and not just what some smarty pants “thinks” the evidence should be. If your agency’s head knows that legally the burden of proof for short suspensions can indeed be as low as substantial, and he or she still decides that the penalty burden should be at the preponderance level, so be it. Heck, make it the “clear and convincing” level of proof if that floats your boat. However, if you conclude that the proof burden for disciplinary actions must be “preponderance” without considering all the options, you are a baaaad employment law policy maker. Wiley@FELTG.com

Could You Fire Matt Lauer?

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By William Wiley, December 13, 2017

Pop Quiz: What do these three individuals have in common?

  • Charlie Rose
  • Matt Lauer
  • Garrison Keillor

Answer:  No doubt, a list of very descriptive words came to mind when you were trying to come up with an answer. Well, since this is an employment-law-like newsletter, you might have guessed that is the sort of answer we’re looking for. When you come at it from the human resources direction, the answer relevant to all you readers is this:

They each were fired within about 24 hours of being charged.

When this topic came up in one of our famous FELTG seminars a week or so ago, one of the attendees opined that it would be great if we could move that quickly in the federal government when we come across a bad employee.

Well, we can. More or less.

Using the Lauer situation as an example, here’s what’s been reported:

  1. One of Lauer’s coworkers, accompanied by her super-duper attorney, met with representatives of the company’s human resources office. In that meeting, the former co-worker described in graphic detail unwelcome sexual contact initiated by Lauer.
  2. Human resources confronted Lauer with the charge, which he did not deny (or may have even admitted; I can’t tell from the news reports).
  3. Lauer was then fired.

There’s no reason that a good human resources office in a federal agency could not essentially accomplish this same result if there were a sexual harasser in the workplace, with a bit of tweaking to comply with the civil service law.

  1. You would have a sworn statement from the victim. That’s a preponderance of the evidence. No need for a big investigation or a bunch of witness interviews. It is more likely than not that the event occurred if she said it did, she’s credible, and there’s no evidence it did not occur.
  2. Because it’s the federal government, we would have to draft a proposal to remove. That should take maybe 15 minutes: “By this memo, I propose that you be removed based on the following charge. On November 30, 2017, you coerced Vickie Victim into having unwelcome sex with you.” Attach to the memo the sworn statement above.
  3. Unless you are fortunate enough to work at DVA, you’ll need to complete a Douglas Factor worksheet. If you can’t pump up Douglas Factor 1, the nature and seriousness of an offense like this to justify a removal, you need to come to one of our classes. Commenting on all 12 Douglas Factors should not take more than 20 minutes.
  4. In the proposal notice, above, include a paragraph that places the employee on Notice Leave. That way, you can get the employee out of the work place the same day that you draft the proposed removal which should be the same day you obtain the sworn statement.

In the private sector, where the darned Constitution doesn’t apply, they guy stops getting paid that day. However, in the fed, we’ll need to give the dude a seven-day chance to defend himself orally and in writing, and can’t issue a final decision until Day Eight. At least he’s out of the workplace all this time. In most cases, we’ll have to pay him for another 22 days because the law says so, but he’s already fired. In some cases, you’ll be able to get him off the payroll on Day Eight if you conclude the misconduct amounts to a criminal assault or some other crime that could involve jail time.

Can your human resources office do this? If not, then you should fix that. Victims in cases like these, as well as the citizens of our great country, deserve swift justice. Does your legal office see a problem with moving this quickly? Then the folks over there need to read a few MSPB cases to find out how expedient this can be.

We take a lot of flak in the fed for not acting quickly to hold employees accountable. The recent incidents reported in the press give us a reason to rethink how we initiate removal actions in egregious circumstances. Here at FELTG, we recommend that you get your best minds together and develop a predetermined procedure with specific assignments and draft templates to deal with issues like these before they occur. Our coworkers who are the victims of sexual misconduct deserve no less.

As my grandmother used to say, “It doesn’t do any good to order the fire extinguisher after the fire has started.” And as I learned in the Boy Scouts many years ago, “Be prepared.” Be ready for things like this to happen, because they are going to happen again, Mister, they are going to happen again. Wiley@FELTG.com

More to Learn from DVA

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By William Wiley, December 13, 2017

Thirty-nine years ago this month, all of us employment law practitioners began reading and re-reading the brand new “Civil Service Reform Act of 1978.” So much to know (and not know). New rules, new flexibilities; every agency developed an informal brain trust to figure out how this new law worked and what strategies to employ to take advantage of it.

Our friends at DVA are in the same situation right now. Last summer, Congress created new procedures that DVA could use in lieu of the traditional 5 USC Chapter 75 procedures to hold employees accountable for conduct and performance. Here at FELTG, we’ve predicted that these new procedures are effectively a test run and will be employed throughout the civil service if they prove to be successful at increasing DVA employee accountability.

Three of the major changes to the accountability procedures that come from the new DVA law are:

  • A shortened notice period between the day an employee’s removal is proposed and the day the employee can be removed from the payroll (from about four weeks to about three weeks),
  • A lowered burden of proof for misconduct removals (from a preponderance of the evidence (51%) to substantial evidence (~40%), and
  • A prohibition on a judge or arbitrator from reducing a penalty (no mitigation, no need to justify a penalty using the Douglas Factors).

Recently, we got an insightful question from a DVA reader who had read the law more closely than we had here at FELTG:

Good afternoon, I’m curious to hear your thoughts as to any benefits VA might have from issuing a 14-day suspension under 752 as opposed to a 15-day under 714.  There’s MSPB jurisdiction but no penalty mitigation and a lower burden of proof.

We weren’t really sure what the question was all about until we re-read the law. Guess what? These new 38 USC 714 procedures that allow for a lower burden of proof and no-penalty-mitigation apply to removals, demotions, and suspensions IF THE SUSPENSION IS 15 DAYS OR MORE. That means that for a shorter suspension, DVA has to use the old 5 USC Chapter 75 procedures that require a preponderance of evidence and penalty-justification.

Wow. How crazy is that? If our interpretation is correct, that it is easier to defend a long suspension than it is a short suspension, that throws DVA into a weird strategy position. Our advice would be something like this:

  • As a general rule, we can’t find any real benefit to a suspension and we find a number of drawbacks. Therefore, we recommend doing away with suspensions altogether and offering the employee a Reprimand in Lieu of a Suspension for a second or more serious offense. (Attend our January 23 webinar on Discipline Alternatives: Thinking Outside the Adverse Action for more detail on why suspensions really don’t work.)
  • If DVA wants to suspend in spite of there being no evidence that a suspension corrects misconduct, for non-bargaining unit employees, the shorter 14-day suspension is still the better option as it can be challenged only within DVA, thus avoiding an MSPB hearing.
  • For bargaining unit employees, we recommend avoiding short suspensions and using the 38 USC 714 option. We don’t want an arbitrator to apply Chapter 75 mitigation and preponderance to a suspension if we can help it.

These are fascinating times in government employment. As we’ve said often here at FELTG, Congress’s piecemeal approach to increasing accountability via segmented legislative action is going to create this sort of nonsensical anomaly. DVA, best of luck in figuring out how to use all of this new flexibility. The rest of the civil service can hardly wait to see how it turns out for you. Wiley@FELTG.com

The New HHS Requirement for PIP Length

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By William Wiley, December 13, 2017

Recently, the Acting Deputy Secretary of Health and Human Services took the accountability-bull by the PIP-horns. Instead of leaving the length of a PIP to the vagaries of the various supervisors and management advisors within the 80,000-employee agency, effective immediately, PIPs at HHS generally are not to exceed 30 days in length, barring some CBA that states otherwise. In addition, the immediate supervisor administering the PIP is required to decide whether the employee performed acceptably during the PIP and initiate steps to implement that decision within seven days of the end of the PIP, if not sooner.

First, our congratulations to the leadership at HHS. Bravo! A poor understanding of the PIP process and a mistaken belief that somehow a longer PIP is either required by law or better for America has been a long-lasting problem in our civil service. It’s absolutely delightful to see an agency taking seriously our government-wide challenges with accountability and implementing a drop-dead easy first step to make things better for agency supervisors who are trying to get done the government’s work.

In response to this recent change, we got a question from a Concerned Observer (CO) who wondered if this change comported with due process. Separately, our CO wondered if the notice period in a removal was long enough to satisfy due process if it was only seven days. Apparently, in the CO’s agency, employees who were having their removals proposed were routinely being given 14 days to respond. Our response follows and may be helpful to those of you considering whether to follow the shorter-PIP lead of HHS:

As for the length of the response period in a removal and due process, the Constitutional due process requirement says that the citizen has to be given an opportunity to defend himself from the government before the government can take his property. Congress defined the length of an appropriate due process response period in 1978 when it passed the Civil Service Reform Act. Therein, it defined the reasonable response period to be seven calendar days, 5 USC 7513(b)(2). In the 40 years since then, no court nor the MSPB has ever held that seven days is a violation of due process and thereby an inadequate period of time to respond. Not. Ever.

In fact, there are situations in which the law allows for an even shorter response period. In a statute that applies only to law enforcement officers, if a LEO is found guilty of a felony, there is a LEO-specific statute that says fewer than seven days still satisfies the minimum due process requirements. Bottom line: There is no legal reason to give more than seven days’ notice in a proposed removal action.

As for whether a PIP longer than 30 days will increase the chance of success before the Board, in 40 years, a longer PIP has never improved the chances of agency success. Not. Ever. Of all the federal employees fired in the past four decades for poor performance, none has ever been put back to work on appeal to MSPB because the PIP was not longer than 30 days. In fact, in the history of our great country, going back to the Articles of Confederation, only one performance removal was reversed by the Board because the PIP was too short. That was when the Department of Agriculture used a three-day PIP back in the ’80s. Bottom line: I was chief counsel at MSPB for nine years. I’ve reviewed thousands of terminations on behalf of the Board’s Chairman. I know this stuff cold. A longer PIP does not help you.

In fact, a longer PIP makes you look foolish and like a waster of taxpayer dollars. Here’s why:

  • We hire employees who claim they can do a job. Unless specified as selected for a trainee position, new hires have to meet job qualification requirements when first employed.
  • Newly hired employees have to be given a couple of months to get used to a new position. MSPB calls this a warm-up period. After that, they should be fully functioning, successfully performing employees.
  • Prior to PIPing an employee, the supervisor has to have observed enough job deficiencies to reach the conclusion that the employee is performing unsuccessfully; that even though the employee said he could do the job when hired and has been given 60 days or so to get used to the job, he can’t do it. In the private sector, most employers would fire the employee at this point.
  • However, by law prior to firing a failing career federal employee, we have to give him an opportunity to demonstrate that he actually can perform, even though it appears he cannot. 5 USC 4320(b)(6). The law doesn’t say to “improve” to acceptable performance. This is not a “developmental” period. The law says to “demonstrate” acceptable performance. So, if we have an employee who said he could do the job when hired, and he has demonstrated to his supervisor he cannot do his job and does not deserve to be paid every two weeks because of his non-productivity, how much more Federal money should we spend to allow the guy to demonstrate whether he can do his job? We look foolish if we give more than 30 days. If the government were being run like a business, the individual would be given much less than that.

As for the seven-day decision-making period in the HHS Secretary’s new instruction, ask yourself this: If a supervisor has already decided an employee is a poor performer (a prerequisite to initiating a PIP), and has observed the employee closely and counseled the employee during the PIP (a requirement for a valid PIP), then how much more time does the supervisor need to decide whether the employee should be removed, given that each day the supervisor waits beyond the PIP to initiate a decision is a waste of taxpayer dollars?

In our practice here at FELTG, when we work with a supervisor to PIP an employee, the supervisor makes the decision on day 31 of the initiation of the PIP. Seven days, frankly, is generous. Put another way, a supervisor who cannot decide within a week of the end of the PIP whether we should keep paying an individual who has already demonstrated he does not deserve to be paid probably should be PIPed himself. Holding employees accountable is a fundamental obligation of every federal supervisor.

A large part of the length-of-PIP issue was caused by OPM. Way back in the early ’80s, OPM in its regulations coined the term “performance improvement period.” That’s of course, where we got the acronym “PIP” and those initials have come to be widely used throughout government since then. Unfortunately, the law that was passed in 1978 never called for an “improvement” period. Instead, it specifically called for a “demonstration” period. 5 USC 4302(b)(6). Those are two fundamentally different concepts. Want me to demonstrate whether I can play the piano? In 20 seconds you will know I cannot. Want me to improve my piano playing? That, my musical friend, will take weeks and months. (Dr. John is my New Orleans idol, musically and sartorially: https://www.youtube.com/watch?v=YcvudjjnFdo )

Sometime in the ’90s, OPM saw the error of its ways. Its regulations no longer call for an improvement period. Instead, they mimic the law and call for a “demonstration opportunity,” 5 CFR 432.104. Unfortunately, “DO” has not caught on and we continue to use the misnomer “PIP”, thereby mischaracterizing the purpose of the period and causing confusion as to a proper length.

As we have said many times, because of the frustration that Congress has had with our seeming inability to hold federal employees accountable, we are on the verge of losing our statutory civil service protections. In addition, a number of agencies are looking at serious reductions in the number of individuals they employ. Can you spell RIF? If your agency is routinely using PIPs of more than 30 days, then you are contributing to the problem. You are failing to efficiently hold employees accountable for non-performance, and putting yourself in a position in a RIF to release highly-productive junior employees because you have a crowd on more senior non-performers who will be retained in a reduction in force.

Keep PIPs, response periods, and decision-initiating periods short and America will be the better for it. Wiley@FELTG.com.

FELTG Sues OPM

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By William Wiley, December 5, 2017

OK, OK. We haven’t really sued them YET. And it’s not REALLY a law suit. Instead, we’re going to go after something called a “writ of mandamus.”

For those of you who a) did not go to law school, or b) went to law school, and flushed your brain of things like this right after the bar exam, a mandamus is a judicial writ (something issued by a court) that commands another government entity to do something that the entity is required to do, but is not doing. See Marbury v. Madison, 5 US 137 (1803) (more or less).

So, what possibly could OPM have failed to do that would make the crew at FELTG do something that takes time and effort other than presenting training and providing consultation services? Easy. On December 23, 2016, the Administrative Leave Act of 2016 became law. Among other things (inter alia, if you’re feeling all lawyerly and Latin-esque), that piece of legislation created a new type of life-saving paid leave for use by federal agencies when confronted with a bad employee. Prior to the enactment of the act, OPM through regulation was directing federal agencies to keep employees in the workplace for 30 days even after their supervisor had decided that they should be fired.

Every reasonable person in the civil service knew that this was stupid. Individuals who have their removal proposed are under a great deal of stress and have the potential to become irrational or violent. In our society, just about anyone can own a gun. Sometimes violent people use guns to kill people. Therefore, keeping a federal employee noticed of a proposed removal in the workplace for a month where he can kill people is just freaking stupid. But that’s what OPM says should be done. 5 CFR 752.404(b)(3).

Thank goodness, the folks on Capitol Hill realized that this was not the way to handle potentially dangerous employees who have been notified of a proposed removal. In this new legislation, Congress said that federal agencies now have the option of placing such employees on a new type of paid leave: Notice Leave. Therefore, effective on December 23, 2016, agencies had this right and some began to use it. Hand the employee a proposed removal letter, and in that notice, tell that employee that he will be paid until a decision is made, but he is not to come to work and is to stay away from the federal facility where he is employed. Regular readers of the FELTG Newsletter might remember how we celebrated the passage of this bill as a Holiday Gift from Congress to the good people of our civil service. No longer would you have to unnecessarily risk your life to come to work when a coworker is notified of an impending removal.

Congress realized that implementation of the Act would take some effort on the part of OPM to draft new leave regulations. Therefore, it wisely set a 270-day time limit for OPM to do so, perhaps knowing that sometimes OPM does not act promptly to update regulations (e.g., implementation of the Americans with Disabilities Act Amendments Act of 2008 still conflicts with outdated OPM regulations on medical exams).

That 270-day time limit expired on September 17, 2017. Today is the 347th day since the law became effective. We may not be too good with the math here at FELTG, but we think it’s fair to say that OPM has failed to comply with the requirements of the law.

So, who cares? Well, you should. A number of agencies have mistakenly concluded that the Notice Leave law cannot be implemented until OPM issues its regulations. That’s obviously wrong because every graduate of a high school civics class knows that laws become effective (unless specifically denoted in the bill otherwise) the day the President signs the legislation. If you work in an agency that is not taking advantage of Notice Leave to get potentially violent people out of the workplace because OPM has not issued regulations, your life is in danger.

So that brings us to this writ of mandamus. OPM was obligated by law to act by this past September. It has not. Therefore, the situation is ripe for a federal court to direct them to issue the darned regulations upon threat of a contempt of court order. All it takes is somebody to petition a federal court to make OPM do what it is required by law to do. Is your agency going to do it? No, OPM is your sister agency. We don’t (usually) have one federal agency challenging another federal agency in federal court. Are you going to do it? No, you’re too busy running the government. Are we here at FELTG going to do it?

Darned straight we are.

OPM, consider this your notice. You’ve got 30 days. Either issue the regulations that Congress directed you to issue by the end of the year, or we’re going to figure out how to petition our local federal district court for a writ of mandamus to order you to do it. And we do mean “figure out” because we have no idea how to do it. Fortunately, we have law books that have been sitting in boxes in the basement for years, and then there’s The Google.  It can’t be that hard. And if we can convince a judge of the harm so that we have standing, it should be a slam-dunk legal decision. The Notice Leave law is specific and not discretionary. It is hard to imagine that OPM could muster an argument that it is not bound by a specific law.

We don’t want to do this. We’d much prefer to see federal agencies follow the law. However, when that is not being done, and when the lives of civil servants are at stake, we spring into action. OK, OK; maybe “spring” is not exactly the verb we are looking for, but you get the idea. If we have to do this, if we can get a court to issue a mandate, then along with Marbury v. Madison, law students might someday have to study the historical case FELTG v. OPM.

And if a writ of mandamus works to get us some new OPM regulations, maybe it’ll also work to get us some new Board members over at MSPB. We are shameless when it comes to protecting the civil service.  Wiley@FELTG.com

Errata:  A few weeks ago, we published a little article about the impact of the new law that allows DVA to fire bad employees more easily than in other agencies. Within that article, we hypothesized that with the new law making it so much easier to hold bad employees accountable, the DVA employee relations practitioners might now have the opportunity to take up golf and spend time with their families. Well, man-o-man, did that light up the old in-box. We now stand informed that the staff at DVA is still working endless hours to hold employees accountable, declining hobbies, and ignoring their kids and spouses, just like before. The main difference is that they are now able to hold EVEN MORE employees accountable, and have yet to cut back on their time commitments. We stand corrected, and take our hats off to our DVA colleagues for your hard-working commitment to a greater civil service.