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It’s Not Too Late to Make a Difference

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By William Wiley, July 25, 2017

In last week’s newsletter, we described OPM’s lack of concern for your life and the lives of those with whom you work. It has demonstrated this insensitivity by issuing a proposed rule that would effectively require that an agency keep a fired employee in the workplace for up to three weeks after the decision to fire him has been made. Stressed out people sometimes become violent. We cannot ignore the fact that individuals who are fired are under significant stress. Requiring fired civil servants to continue to work after their removals have been proposed and even decided is an unnecessarily dangerous policy.

You can do something about this. Whoever you are wherever you are, if you can access an email account, you can tell OPM what you think: pay-leave-policy@opm.gov.  When submitting comments via this email address, place this in the subject line:  RIN 3206-AN49: Proposed Rule Comments-Administrative Leave.  In the body of your message identify the section of the regulations on which you are providing comments. The proposed regulations can be found at  https://www.gpo.gov/fdsys/pkg/FR-2017-07-13/pdf/2017-14712.pdf.  You have until August 14 to act to save your life.

Here’s our latest FELTG comment, if you’re looking for a tone and format:

Dear OPM-

We have previously commented that this proposed rule should be modified so that agencies are encouraged to use Notice Leave in every case in which an employee’s removal is proposed, and that the regulations should be rewritten so that it is easy for this to be done. As drafted in the proposal, it would be exceedingly difficult for an agency to implement Notice Leave. The following rationale is in further support of my previous comment.

When drafting the Civil Service Reform Act of 1978, Congress expressed no intent that an employee whose removal is proposed be retained in a work status during the notice period. In fact, when considering the requirements of the law, it makes no sense. From the day that the supervisor notifies the employee that his removal is being proposed for misconduct, the employee need be given no more than seven days to respond. 5 USC 7513(b)(2).  That means that the deciding official can issue a decision on the proposed removal as early as day eight, after the close of the minimum response period.

It makes absolutely no sense that an agency be required to keep an employee in the workplace after a final decision has been made to fire him. These are individuals who have engaged in misconduct so bad that they deserve to be terminated. Or, they have such significant medical infirmities that they cannot perform the essential functions of their position. It defies any logic that individuals like this should be directed to report to work for 22 days after the decision has been made that they should not be employed. So why did Congress mandate a 30-day notice period if it makes no sense to keep someone in the workplace after the decision has been made to fire them?

I know the answer. And I know it because I am old. I was in the business of federal employment law when this legislation was being developed and debated in 1978. I heard Scotty Campbell, former Civil Service Commissioner and driving force behind the structure of the Reform Act, say that the extra 30 days of pay was to ease the transition of the employee out of government employment; i.e., to give him a chance to find another job. In other words, it was a way of providing something akin to severance pay to the employee as he was being removed. The purpose of the notice period is to provide money to the employee, not to try to get work from the employee.

The law says, “at least 30 days’ advance written notice.” Had Congress intended that the notice period be completed while the employee was in the workplace after the decision was made to fire him, it would have said, “at least 30 days’ advance written notice, during which the employee will remain in the workplace.” It is my opinion that Congress did not add this language because it could not conceive that anyone would think it a good idea to retain a fired employee in a federal worksite for three weeks after the decision had been made to fire him.

Apparently, Congress was mistaken.

The draft rule should be rewritten to empower front line managers to protect the federal workplace once an employee’s removal has been proposed. The rule should be amended in part as follows:

5 CFR 630.1505 Administration of Notice Leave

Whenever an agency proposes the removal of an employee, normally it shall place the employee on Notice Leave. Retaining such an employee in a work status jeopardizes the government’s interest in the safety and integrity of the federal workplace. The authority for imposing Notice Leave should be delegated to the lowest reasonable level within the agency.

Respectfully submitted for your consideration. Wiley@FELTG.com

OPM Doesn’t Care if You are Killed

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By William Wiley, July 19, 2017

Regular readers of our newsletter will remember the celebration we had when Congress created a new type of paid leave status back in December: Notice Leave. The problem we’ve been having for several years has been a conflict between two competing interests:

  1. The interest of not paying employees to not work by putting them on administrative leave for months and years, and
  2. The interest in getting potentially dangerous employees out of the work place where they might kill somebody once their removals are proposed.

Here at FELTG, for nearly 20 years, we have come down on the side of the protection of the government’s workplace by using administrative leave during the 30-day notice period that precedes a removal for misconduct or performance. To us, reducing the opportunity for workplace violence is more important than a few days of administrative leave.

Unfortunately, we don’t get to make the rules. The rule makers at OPM and on Capitol Hill have come down on the side of theoretically protecting the federal fisc by ordering that the use of administrative leave be restricted even if it endangers the lives of federal workers and the public. Yes, you’re reading that correctly. OPM’s regulations for many years have said that normally an employee whose removal has been proposed will remain in his regular job during the notice period.

If we need to explain to you why this is foolish, you must be new. Does anyone REALLY think that the employee is going to produce usable work once notified of his impending removal? Is it REALLY a good idea to allow an about-to-be-fired individual to have 30 days of access to sensitive government documents and personal citizen data? Does anyone REALLY believe that a civil servant who is about to be terminated is not under the biggest stress of his life (and we all know what stress does to making sane decisions)?

Congress’s creation of Notice Leave, we wrote, was the best Christmas present any civil servant could have asked for. Finally, we had a method specifically designed to protect federal employees from getting killed by a stressed-out coworker who has a pending removal over his head. With no limitation on how long Notice Leave could be used, we could, for the first time in history, hand the employee a proposed termination, escort him out the front door and bar him from returning, and still protect his right to receive a salary for the duration of the notice period without using administrative leave.

Well, leave it up to OPM to screw up a perfectly fine opportunity. Rather than taking the new law, concluding that when an employee’s removal is proposed it categorically “jeopardizes the government’s interest” (statutory standard) to keep him in the workplace for 30 days, and issuing a regulation to put that into effect, OPM has taken just the opposite approach. Last week it proposed a regulation that will make it nearly impossible for an agency to protect itself by putting a failed employee on Notice Leave.

Here’s what OPM’s policy should say, according to FELTG:

5 CFR 630.1505 Administration of Notice Leave

  • Whenever an agency proposes the removal of an employee, normally it shall place the employee on Notice Leave. Retaining such an employee in a work status jeopardizes the government’s interest in the safety and integrity of the federal workplace. The authority for imposing Notice Leave should be delegated to the lowest reasonable level within the agency.

Here’s what OPM has proposed otherwise. We’ve restructured the requirements for clarity and emphasis on the ridiculous burden that OPM is creating:

5 CFR 630.1503 – 1506

Prior to placing an employee on notice leave the agency may not establish a categorical policy and must document the following for each incident of notice leave:

(1) The reasons for initial authorization of the notice leave, including the alleged

action(s) of the employee that required issuance of a notice of a proposed adverse action;

(2) The basis for the determination that the employee’s retention in a work status would:

(i) Pose a threat to the employee or others;

(ii) Result in the destruction of evidence relevant to an investigation;

(iii) Result in loss of or damage to Government property; or

(iv) Otherwise jeopardize legitimate Government interests.

(3) An explanation of why any of the following options are not appropriate:

(i) Keeping the employee in a duty status by assigning the employee to

duties in which the employee no longer poses a threat,

(ii) Allowing the employee to voluntarily take leave (paid or unpaid) or paid time off, as appropriate under the rules governing each category of leave or paid time off;

(iii) Carrying the employee in absent without leave status, if the employee is

absent from duty without approval; and

(iv) For an employee subject to a notice period, curtailing the notice period if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, consistent with 5 CFR 752.404(d)(1).

(4) When making the decisions above, the agency must document its consideration of:

(i) The nature and severity of the employee’s exhibited or alleged behavior;

(ii) The nature of the agency’s or employee’s work and the ability of the agency to accomplish its mission; and

(iii) Other impacts of the employee’s continued presence in the workplace

detrimental to legitimate Government interests.

(5) When deciding whether an employee’s presence is detrimental to government interests, the agency must document consideration of whether the employee will pose an unacceptable risk to:

(i) The life, safety, or health of employees, contractors, vendors or visitors to a Federal facility;

(ii) The Government’s physical assets or information systems;

(iii) Personal property;

(iv) Records, including classified, privileged, proprietary, financial or medical records; or

(v) The privacy of the individuals whose data the Government holds in its

systems.

(6) And if documenting the rationale for each particular grant of Notice Leave isn’t enough, the agency also has to document:

(i) The length of the period of notice leave;

(ii) The amount of salary paid to the employee during the period of leave;

(iii) The reasons for authorizing the leave:

(iv) Whether the employee was required to telework under during the period of the investigation, including the reasons for requiring or not requiring the employee to telework; and

(v) The action taken by the agency at the end of the period of leave.

In its preamble to these proposed regulatory changes, OPM opines the reason it is requiring that all other conceivable options short of Notice Leave be exhausted and documented rather than simply implementing Notice Leave commensurate with the proposed removal: during the notice period by avoiding Notice Leave if possible, the agency can “continue to benefit from the employee’s skillset and abilities to further the agency’s mission.” Well, that’s just stupid. Think who these people are who have had their removals proposed. They are almost always civil servants who have:

  1. Already engaged in misconduct so bad that their supervisors have decided, after doing a Douglas factor analysis, that these bad hombres should be fired,
  2. Performed so poorly as to be determined to be unacceptable, given a month or better to improve their performance, and still continue to be unacceptable performers, or
  3. Have such bad medical infirmities that they cannot perform their job.

And OPM wants us to keep these people in the workplace “to continue to benefit from their skillset.” We think that somebody at OPM needs a better skillset if they’re going to be drafting regulations in this area.

Here’s another part of the preamble we just love. OPM says that prior to implementing a period of Notice Leave, the supervisor should consult with their human resources office or general counsel. Well, why? I have held each of those positions in my career. Here at FELTG, we have trained thousands of human resources specialists and agency attorneys over the years. And you know what? We have never, ever met anyone in one of these positions who has been trained in how to predict future violent behavior. I was a psychologist before I became an employment lawyer. Any trained mental health worker who claims that he can predict with certainty whether an individual will engage in future violent behavior is engaging in malpractice.

We know better. We read report after report of workplace killings and see that in many (if not most) of them, the perpetrator had no history of violence or mental disorder, and often was well liked by coworkers. Those of you who have lived around the Beltway might remember the workplace killing that happened several years ago at the Lululemon store in Bethesda. There were two young women involved. When Worker A told Worker B that Worker B’s theft of clothing had to be reported to management, Worker B began stabbing Worker A. While conducting the autopsy, the coroner reported over 300 stab wounds in Worker A’s body.  Without exception, Worker B was described by friends and coworkers as mild-mannered, polite and cheerful, with no history with the police or of violence.

OPM’s draft regulations, by referring the matter to untrained attorneys and human resources practitioners for advice, is taking the decision away from the person in the best position to make the decision: the immediate supervisor. That supervisor also happens to be in a position where she is most likely to be the victim of any workplace violence that results from a proposed removal. Years ago, I had a supervisor-client in an agency who called me in tears. I had advised her to put the employee on administrative leave once she issued the proposed removal. Unfortunately, when she tried to put that in the draft proposal letter, the human resources specialist advising her told her that he “would not let her do that,” that he “could tell who was going to be violent,” and then went back to the HR office where he was safe behind two locked doors.

I have never felt closer to whacking an HR specialist in my life.

We cannot imagine what public good is served by OPM’s placement of these significant limitations on an agency’s authority to impose Notice Leave. It cannot be the saving of tax dollars. The employee gets paid whether at work or on Notice Leave. So that isn’t it.

Maybe it’s the perceived value of having the employee’s work product during the notice period; work product from someone who is either a) medically unfit, b) a proven non-performer, or c) a rule-breaker. With that, let’s play a little mind game:

  • First, based on your experience in the civil service, place some dollar value on the work product you estimate you’re going to get from someone who falls into one of these three categories, after you’ve told him that he probably will be fired within 30 days. Put that number here and call it Value A: $__________.
  • Next, place some dollar value on your life. And the lives of the other employees in the immediate vicinity of your office. And the members of the public wandering around your facility. And the super-secret information maintained by your agency in your data files. And avoiding the disruption to government operations that might be caused by workplace violence. Place that number here: $___________. Now, multiple this last number by a percentage that represents the likelihood, in your opinion, of violence erupting from an employee who gets a proposed removal (e.g., 1%, 5%, 50% … whatever). Put that number here and call it Value B: ________.

If your Value B is larger than your Value A, you will agree with FELTG’s proposed optional regulation that would allow immediate supervisors to impose notice leave with the least constraints possible under the law.

If your Value A is larger than your Value B, you have an exceedingly unique view of life, and you should apply to work at OPM, if you do not already.

OPM! For god’s sake, this is life and death stuff we’re talking about here!

Did you not hear about the coworker murders in the rampage at the Washington Navy Yard not long ago? Are you ignorant about the history of people like Nidal Hasan, the psychiatrist who shot 43 coworkers in a government workplace in 2009? Are you unaware that the Bureau of Labor Statistics says that every week day in America, two people kill a coworker?

These proposed regulations were drafted by someone who either:

  1. Has never spent any time in a federal workplace, or
  2. Doesn’t care that they are putting lives in danger for the sole benefit of … I have no freaking idea.

Here’s a reality check. In our FELTG seminars, this topic often comes up when we are working with a group of supervisors. We have never met a supervisor who thought it was a good idea to hand an employee a proposed removal, then keep the employee in the workplace for another 30 days. Certainly, that would not happen in a private sector company. OPM, if you care at all about the lives of federal employees and do not agree with what we’ve written here, check it out for yourself. Pull together a group of front-line supervisors from agencies throughout government. Ask them two simple questions: “How many of you think it is a good idea to keep an employee at work once his removal is proposed?” Then, “How many of you think that an employee should be removed from the workplace once she receives a proposed removal?” We guarantee you the answers you get will support what we’re saying here.

Here’s another reality check. Congress passes laws that control the civil service. Yet, very few members of Congress have ever worked as civil servants or really know much what it’s like to try to run a federal agency at the front lines. We can’t expect them to appreciate all the nuances of what we are trying to do and what life is really like out here in the trenches.

But we should expect that from OPM. As I understand government, that is the agency that is supposed to take laws passed by Congress and build regulations based on them that actually work, consistent with the flexibilities within the law. OPM has not done that here, and instead is in the process of creating a dangerous workplace that could never have been the intent of Congress when it created Notice Leave. We cannot move toward the goal of increasing the accountability of the civil service if OPM issues regulations that make supervisors fear for their lives when they try to fire a bad employee. That is EXACTLY what these proposed regulations will do.

Your comments are due to OPM by August 14, https://www.gpo.gov/fdsys/pkg/FR-2017-07-13/pdf/2017-14712.pdf.  Union folk, form the picket lines at 1900 E Street, NW; FELTG will march with you. Email: pay-leave-policy@opm.gov.  When submitting comments via this email address, place in the subject line:  RIN 3206-AN49: Proposed Rule Comments-Administrative Leave.  In the body of your message identify the section(s) of the regulations you are providing comments on.

It’s your life. Decide how much effort you want to put into defending it. Wiley@FELTG.com

Learn to Avoid Unjustified Gambles

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By William Wiley, July 19, 2017

So many questions, there are. This month, we got a good one from a long-time reader about the use of Letters of Warning. The writer was being advised (accompanied by legal citations) that a Letter of Warning was considered as prior discipline by MSPB, although we teach in our fantastic FELTG seminars that it is not.  Here’s our response:

Dear Poorly-Advised FELTG-Constitute:

In each of the three cases cited by your advisor as evidence that a Warning is prior discipline, the letter of warning considered as prior discipline is a “letter of warning in lieu of suspension.” These are effectively suspensions, not simply administrative letters of some type. USPS is the defendant agency in these cases and has wisely bargained for this particular type of punishment in its national labor agreement. MSPB has found these letters to be prior discipline in other agencies besides USPS, but only IF they are developed through agreement with the employee and the employee specifically accepts them as alternative discipline constituting prior discipline for the purpose of progressive discipline. Otherwise, they are referenced in disciplinary letters for establishing notice (Douglas factor 9) and nothing else. They simply are not discipline.

Discipline was defined for us in Bolling v. Air Force, 9 MSPR 335 (1981). In that decision, the Board said that to be countable as discipline for progressive discipline purposes, the instrument must be in writing, stored in a system of agency records such as the OPF, and grievable. Back in 1981, the only widely accepted instrument that did that was the Reprimand. Letters of Caution, Letters of Warning, Letters of Expectation, etc., were used in varying ways by some agencies with many agency policies not allowing them to be grieved, and usually not storing them in the OPF. Therefore, the Reprimand developed universally as the first step in progressive discipline.

Of course, nothing stops an agency from coming up with an instrument, calling it anything it wants to call it (e.g., a Bad Day Memo), defining it as a disciplinary act in a policy statement, and ensuring that it meets the Bolling criteria. However, few if any have done that because there really is no legal benefit to adding to the list of disciplinary tools; Reprimand, Suspension, and then Removal are perfectly adequate for holding employees accountable and sooooo much simpler than trying to deal with poorly defined, confusing, additional discipline tools.

In a related arena, the courts have had to decide whether letters like Warnings and Cautions are “personnel actions” for an individual to be able to claim whistleblower reprisal. Well, sometimes yes and sometimes no, depending on the specific language, not the title of the document. They do not rise to the level of being a personnel action if they only admonish the employee to act in a particular manner, do not accuse her of anything wrong, and do not restrict her behavior. Ingram v. Army, Fed. Cir. No. 2015-3110 (August 10, 2015). Otherwise, they do. If a Letter of Warning accuses the employee of misconduct, it is a personnel action for a whistleblower reprisal claim. However, if there is no policy allowing it to be grieved or retained in a file system like the OPF, then it is not discipline.

Isn’t this crazy?

By far, the best approach is to stop doing Warnings, Cautions, Counselings, or anything else that smells like discipline, but may or may not be. They have NO value in progressive discipline and they confuse those who do not know our law. More dangerously, they may inadvertently become something we must defend against as a personnel action for reprisal purposes, all the way through MSPB (discovery, depositions, hearings, petitions for review) to federal court.

Here at FELTG we strongly recommend that you get the word out and stop doing warnings or cautions. They are an unjustified gamble. If you want to put the employee on notice of his misconduct (Douglas factor 9), do it in an email without calling it anything. Emails in general are not grievable nor do they have much potential to become “personnel actions” if there are no threats or accusations. If you want to discipline, use a Reprimand. Nothing less. Hope this helps. Wiley@FELTG.com

Reality Check for the New Political Overlords

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By William Wiley, July 11, 2017

We get so many good questions. This one comes from a class participant in our fabulous FELTG FLRA Law Week (next offered in Washington, DC November 13-17):

Dear FELTG Labor Law Semi-Experts (I say “semi” because as you teach, no human on Earth really understands federal labor law)-

I took your FLRA class last spring in Washington, D.C.  (It was very helpful, thanks!)  I’m pretty sure that at some point during the course, you offered that we could send you a question afterwards. I’d like to take you up on your kind offer.

My question is whether (or when?) a local CBA always “trumps” an Agency policy, or if that holding is limited to “localized” policies.  I’m looking at cases such as Broadcasting Board of Governors v. AFGE (66 FLRA 380), that seems to indicate this is well settled.  But, in an environment (such as we have here at my agency), where we have unions that have National Consultation Rights (NCR), I’m trying to reconcile these rulings with my basic understanding of the Union’s very limited rights in NCR, and that the Agency is permitted to make universal policies at a national level as long as they go through NCR (local CBAs be damned).

In other words – if, at a local field center, the local management agrees to terms on, say, office workspace, with their local union, enter into a CBA articulating those provisions, and then later on, the national agency management comes up with a national level policy on office workspace, that is inconsistent with the terms of the CBA, but properly goes through the NCR process.  Which policy controls at the local field center?  The national level Agency policy?  Or the local policy as articulated in the CBA?  It just doesn’t make sense to me that a local manager’s actions at the local level (in signing the CBA) could essentially prevent national management from having a universal policy.

Any thoughts on this?

And our FELTG response. Sad!

Dear FLRA Law Week participant-

Very nice to hear from you. As for your question, the union agreement always trumps an agency’s new policies – even when there are national consultation rights – with only two exceptions:

  1. The agency can demonstrate that the new policy is related to the “necessary functioning” of the agency and the change is in response to an “overriding exigency.” See SEC v. FLRA, 568 F.3d 990 (D.C. Cir., 2009).
  2. The new policy is implementing a new law (the incontrovertible law part of the new policy is effective right away; the agency still must bargain I & I and any flexible parts of the law).

As for your hypothetical, as much as it makes our eyes burn, if local management agrees to office space of a specific size, and the agency head later decrees that office space will be less than that, the agency is obligated to continue the bargained-for office space if and until it can bargain its way out of it.

The example we sometimes use in class is from NIH, one of our favorite clients. Years ago, the Secretary of HHS declared through a new policy that the work spaces within HHS would be smoke-free. He reasoned that given the word “health” in the name of his agency, he should prohibit things that by their very nature are not healthy. Great reasoning for the new policy. However, it conflicted with several local CBAs, including NIH, which had old provisions allowing designated smoking areas. There’s a big billboard-size sign as you enter the NIH main campus outside of DC that says, “Welcome to NIH, a smoke-free environment.” Every time I walk past it, I want to add an * and a footnote that says, “*Unless you’re in the bargaining units for law enforcement officers or fire fighters.”

Deb and I recently taught a program at the Naval Medical Center, Camp Lejeune. Same scenario. Years ago, the Secretary of Defense issued a policy prohibiting smoking in the health care facilities within DoD. Well, the CBA employees at Camp Lejeune are still smoking away because it’s been in their contract forever. Hey, it’s North Carolina. They’ve got to do something with all that tobacco.

The theory is this: When your local management agrees to certain office space terms in the CBA, it is actually acting on behalf of the agency head when doing so. And that agreement controls any later agency heads who come along who would like to see another policy. That’s one of the Big Deals we have to deal with when we get a new administration like we are in the processing of doing now. The new politicals come in thinking that they can shake things up (making America great again) and guys like us have to tell them that Congress passed a law 40 years ago that limits that authority in a unionized environment. The most we can do is propose changes either term or mid-term, then take them to FSIP when the union impasses us. There, at FSIP, President Trump’s seven political appointees – who serve at the pleasure of the President – will no doubt conclude that the agency head’s new policy will be the new CBA provision for office space.

What’s that? You’re telling me that the President recently fired all the FSIP members and has not yet replaced them? Oh, well. I’m sure he’ll get around to it eventually. Because you can’t implement the new policy from on high until you bargain your way out from under it. And you can’t complete bargaining without agreement until we get at least four new FSIP appointees.

The fact that there are national consultation rights does not diminish the obligation to negotiate. Consultation and negotiation are two different things, as you point out. The law is specific as to what must be negotiated (not consulted about). If the new policy included any changes to negotiable working conditions, they must be negotiated.

Not the answer you wanted, not the answer we necessarily want to give. But until Congress does something (Ha!), this is our world. Wiley@FELTG.com

Mandatory Spanking

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By William Wiley, July 5, 2017

Sometimes an analogy helps us think about the law. Let’s try that by imagining that you live in a small town and that you’ve made the same mistake as has this author of having children (????).

You received an email earlier today from your fourth-grader’s teacher informing you that little Sophia has once more, for the second time this year, forgotten to do her homework. The email says that you should take “appropriate action.” You’ve already decided that when the homework-skipper gets home from her piano class, you’re going to give her a real talking to. Then, the phone rings:

You:     Hello, Smith residence.

Caller: Mrs. Smith, this is Officer O’Reilly. I’m the Discipline Officer here at Trump Elementary where you daughter, Sophia, is a student.

You:     Yes, Officer. What can I do for you?

Caller:  This just a routine call to make sure that you got the notification about your daughter’s misconduct today and to make sure that you plan to spank her before she goes to bed tonight.

You:     Why, Officer, I have no intention of spanking Sophia. All she did was forget to turn in her homework.

Caller:  I’m sorry, Mrs. Smith, but you’ll have to spank your daughter, at least three swats. You see, this is her second offense this term and Trump’s Table of Punishments calls for a minimum of spanking in a situation like this.

You:     But I don’t want to spank my daughter. I’m sure that I can get her to obey the rules some other way.

Caller:  Sorry, Mrs. Smith. I’m afraid you’ll have to spank her. All the other parents spank their children for a second offense. And our records show that two years ago, you spanked your son Jacob the second time he was late returning from recess. Our goal is consistency of punishment.

You: Consistency of punishment?

Caller:  Yes, that’s right. Punishment consistency has been declared to be the main goal of the Trump discipline program. I’m afraid that either you’ll have to spank her or we’ll have to send someone out to spank her for you.

You: You would do that? Even if I think I can correct her behavior otherwise?

Caller:  Of course. We’re interested in punishment consistency. We’re not interested in what you think might work with your child. We want to make sure that all children are treated the same, whether they need to be, or not. You don’t have a problem with that, do you? Because if you do, I just might have to refer to the Parental Table of Punishments to see if there’s something in there we need to do with you.

Pretty scary hypothetical, isn’t it, this idea that you have to punish your misbehaving kids at some preordained level for the sole purpose of consistency? Who made up this requirement that punishment must be consistent to be fair? Doesn’t it make more sense to let parents decide for themselves how to try to correct their child’s behavior, even if they choose a different method than their neighbors might use? Aren’t we really more interested in the conduct being corrected than in whether various parents use the same methods of correction?

Apparently, Congress is not. In an effort to micro-manage how federal agencies run themselves, the House recently approved HR 2131, a bill that would require DHS to take specific action to “improve” consistency in employee discipline throughout the 22 various departments and agencies that comprise DHS. As far as we can tell, it has done this without any proof that discipline is now being administered inconsistently or that consistency of penalty will somehow improve the performance of DHS employees. Some would say that it appears to have passed a bill that “sounds good,” but in fact has no value and will create an additional burden for DHS supervisors trying to hold employees accountable for their misconduct.

As you regular readers will remember, MSPB got sucked into the penalty-consistency trap back in 2010 when it issued The Terrible Trilogy, three lead decisions that for the first time in the history of our republic held that penalty consistency was the most important aspect of deciding whether a removal should be affirmed on appeal. From 2010 to 2014, the Board routinely and sometimes on its own motion demanded to know whether anyone else at the removing agency had ever done anything similar to the misconduct which was the basis for the firing on appeal. If there was, and the supervisor of that comparator had chosen not to fire the employee, the removal on appeal was set aside. Thank goodness that Sole Remaining Board Member Robbins rejected that view when he was appointed in 2012, realizing the untenable burden that mandating penalty consistency places on management officials. Under his leadership, and with the help of the changing mind of one of the other Board members, the Trilogy has been significantly undermined. Experienced practitioners know that today we are back to just about where we were before the Trilogy: as long as removal is a reasonable penalty, it will not be set aside solely because some other supervisor at the agency did not remove his employee who did the same thing.

Too bad that member Robbins isn’t Congressman Robbins. Perhaps if he were, he could have talked some sense into those who voted for HR 2131 because it “sounded good.”

I’m starting to appreciate how lucky we employment law practitioners have been for the past 40 years. In 1978, Congress passed the Civil Service Reform Act, a unified and comprehensive legal structure defining the rights of civil servants and the authority of supervisors in the executive branch to actually run their agencies. Since that time, Congress has done little to change that basic structure, save for the perennial expansion of whistleblower protections (Congress loves them whistleblowers).

Lately, however, Congress seems to have decided that the executive branch agencies are not being run very well, and that Congress knows how to make that branch of the government work better: reduced official time for union representatives, shorter time limits for appeals, no MSPB review of the termination of senior executives, allowing employees to disobey lawful orders if the employee believes that the order violates some rule or regulation, extension of probationary periods, annotation of adverse findings into departed-employee’s records, reduction in an agency’s ability to use administrative leave, clawing back previous cash awards. And now, mandatory penalty consistency. Each of these changes has either already occurred legally or is being talked about as possibly occurring in the future.

This is a stupid way to run a government. Setting aside for a moment the impracticality of some of the recent legislative “fixes” that Congress has considered, it’s just not the way they taught us in high school civics that things were supposed to work. Congress, you’re supposed to provide the governmental goals and the resources to attain those goals. Then, those in the executive branch will do their best to attain those goals, and the judicial branch will decide whether the executive branch has done that fairly. A very neat and tidy system that does not work when a branch of the government without the responsibility to actually do things tries to manage the branch that actually has to provide government services.

Geez, I didn’t intend for this observation about another poorly thought-out piece of civil service legislation to evolve into a rant about the foundations of governmental responsibility. But it is what it is, as the kids say. So take from it what you will, and remember what you are paying for it. Maybe one of you smart readers out there will actually figure out what to do about it. Until then, email your senators and warn them about HR 2131. Hey, if they’re going to try to screw up the civil service one bill at a time, we’ll just have to fight back in the same way. The stakes are too high to do otherwise.

Wiley@FELTG.com

Everybody is a Mitigator

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By William Wiley, June 27, 2017

If you are a repeat-reader of the FELTG newsletter, you know that we believe that agency managers should run the government. Not human resources specialists, not agency counsel, and certainly not some MSPB lawyers ensconced in a governmental ivory tower in Washington, DC (OK, it’s just a red brick six-story building, but you get the point). If we’re going to expect government managers to be held accountable for the government’s work, we should be letting them decide when removal of an employee is warranted, except in the most outlandish cases of over-reaction. In different words, that’s for the most part what the Board’s seminal penalty decision said. See Douglas v. VA, 5 MSPR 280 (1981).

When we see a case in which we think that the Board has over-reached to mitigate a removal, we are fast and furious to beat them up as best we can in a free newsletter. For example, we think that it was crazy for MSPB to require the Postal Service to reinstate a fired employee who had spent her lunch break smoking crack cocaine and marijuana and getting arrested instead of returning to work. And to this day, we do not understand how progressive discipline for an employee who has previously received 7-day and 14-day suspensions should result in a removal mitigated to a 5-day suspension for a third offense (if you need cites for these, come to our seminars). We’re relatively certain that our outspokenness about penalty mitigation has gotten us taken off MSPB’s Christmas party attendee list.

Well, now we’re probably going to be dropped from the mailing list for the Federal Circuit’s Holiday Ball. It seems that those who wear the black robes just off Lafayette Square in DC feel that they are in the better position to decide who deserves to be fired than those line managers held responsible for agency performance. The employee in a recent case before the court was an agency Chief of Police – a supervisory law enforcement officer (LEO). He directed one of his subordinates to misuse a government vehicle by running a personal errand for him. Although he initially lied about the misconduct, he eventually admitted it. The agency and the Board concluded that removal was warranted. However, the Federal Circuit Court of Appeals decided that removal was unreasonable and remanded for the Board to decide a lesser penalty. Tartaglia v. DVA, Fed. Cir. 2016-2226 (June 8, 2017).

In all fairness, DVA and the Board screwed up. They thought that the employee had only four years of service with DVA when he actually had 14 years of service, preceded by 5 years of military service. OK, that’s a mistake, perhaps even a significant mistake, relative to half of Douglas Factor No. 4: Work Record. However, there are 11 ½ other Douglas Factors in play, some of them seriously aggravating:

  1. Supervisors and management officials can be disciplined more seriously than non-supervisors. Cantu v. Treasury, 88 MSPR 253 (2001), Edwards v. USPS, 116 MSPR 173 (2010).
  2. Law enforcement officers can be disciplined more seriously than non-LEOs. Hanker v. Treasury, 73 MSPR 159 (1997).
  3. LEOs who engage in dishonest conduct that results in discipline may become Giglio impaired, thereby reducing or eliminating their ability to testify as witnesses in criminal trials. See Taylor v. Air Force, MSPB No. DC-0752-12-0296-I-1 (NP)(2013).

Does a 15-year mistake in consideration of the individual’s employment history mean he should not be fired for directing his subordinate to engage in illegal behavior? Well, here at FELTG, we do not claim to know. But with all due respect, neither do the three judges who heard this appeal in the Federal Circuit. We do know that a plain old run-of-the-mill non-supervisory federal employee is supposed to get a minimum 30-day suspension for the statutory misuse of a government vehicle. If that is the base line, what do we go up to for a Police Chief who lied about his misconduct initially, and engaged a subordinate employee in an illegal act? Given that long suspensions are harmful to the agency as often as they are to an employee, and given that a long suspension is no more likely to curtail future misconduct than a shorter one, what in the world is the court thinking is appropriate in this situation? The court’s remand expressly provides that removal is an excessive penalty. What does the court think is left?

For whatever it’s worth, we’ve argued for several FELTG years that when the Board or court finds a penalty to be excessive, rather than trying to apply Douglas factors after some of the specifications have failed, the case should be remanded to the agency for redetermination of the penalty given the facts remaining in the case. As some of the charges and specifications fell out on appeal, that’s what should have been done in this case, in our humble opinion.

So far, we’re looking at about two years of back pay with interest, plus what will no doubt be a substantial (and well-deserved) lawyer fee claim. With the Board down to only one member, who knows when the remand decision will be issued that actually results in a ruling on an appropriate penalty. The back pay will continue to accrue for many months.

Hey, DVA; we love you guys. If you were to ask us for advice (which you haven’t because we charge excessively outrageous fees for our opinions), we’d suggest that you cancel the removal, reinstate Mr. Tartaglia immediately, and forget about waiting for a remand decision from the Board on some lesser penalty. Cut your losses. Get some work out of the guy in exchange for the money you’ll have to pay him anyway. Yes, you got scrogged by the court. But did we give up when the Germans bombed Pearl Harbor? (Warning: link contains language NSFW). Heck no we didn’t. Just put this one on the cases-we-shouldn’t-have-lost list and move on. Soon, you’ll have a new discipline system, and you’ll never have to worry about mitigation again. Wiley@FELTG.com

 

 

 

A View of the Future (Some Might Say a Dark View)

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By William Wiley, June 20, 2017

It has begun. Congress and the White House (and a large group of our fellow citizens) seem to think that it is too hard to fire a bad federal employee. From the pages of this newsletter over the years, you’ve heard us shouting from the rooftops that it really isn’t that hard, if you know what you’re doing. And here at the Federal Employment Law Training Group, we’ve done everything we can, short of compulsory servitude, to help you guys know what to do.

Unfortunately, our efforts fell short. Even though the Civil Service Reform Act of 1978 gave agencies terrific tools to hold bad employees accountable while honoring civil servant rights and protections, Congress has felt the need to change those tools, at least at one agency. And it has been widely reported by those inside Capitol Hill that if Congress comes to conclude that these changes actually make accountability easier, Congress will be acting to make these new rules apply to everybody – at least everybody currently a civil servant appointed under Title V.

Last week, the President signed into law the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017. That piece of legislation in large part grew out of Congress’s frustration with the apparent inability of the Secretary of Veterans Affairs to remove and otherwise punish DVA employees who allegedly caused veterans to suffer because of poor management within the veteran’s health care system. The law is supposed to “fix” some of the systemic problems in the oversight of discipline in DVA, based in part on a belief by Congress that MSPB has done a poor job of defending our veterans and neglecting to uphold the disciplining of certain senior executives.

Here at good old FELTG, we don’t agree with this premise, but our opinions are worth exactly what you pay for them.

Everybody in our business, or even interested in our business, needs to know the changes that this legislation has created. Even though most of us do not work at DVA and will not be directly affected by the new law, what we see in this act might very well soon be applicable to the entire federal service. So, never send to know for whom the bell tolls; it tolls for thee (that’s John Donne, in case you were wondering).

There are new requirements that will apply to DVA besides the ones we identify below. For example, DVA will have to establish its own internal whistleblower protection unit with a Presidential appointee running it, independent of OGC. But in this article, we’re comparing the procedural changes that apply for those of us down here in the weeds trying to hold employees accountable. If you need more details than we are providing, make yourself delirious reading the new law, found at https://www.congress.gov/bill/115th-congress/senate-bill/1094/text.

Before we get into the details, we have to point out an amazing bit of word-twisting in this legislation (thanks to an astute participant in our MSPB Law Week seminar we just finished in San Francisco). Whereas nearly every other piece of legislation ever written relative to the civil service speaks of “days” (by common understanding to mean “calendar days”), this act sometimes specifies “business days” (b-days) and at other times simply specifies “days” (for purposes of this article, to be known as c-days.) In the charts below, we’re going to harmonize days for comparison purposes, so that we’re comparing apples to apples. You purists out there can do you own conversions from c-days to b-days, if that makes you happier.

So why the added confusing of specifying b-days sometimes and c-days at other times? Ah, my little Pollyannas. Welcome to the world of politically-created reality. If I say that something has been reduced from 30 days to 15 days, that sounds like a lot of reduction. However, if I say that something has been reduced from 22 days to 15 days (30 c-days are 22 b-days), not so much. It appears to this writer that someone wanted it to look like a greater change was being made by this new law than is really being made. We leave it up to you to come up with a better theory.

Procedures for Removing Bad Federal Employees; a Comparison

  Current Procedures DVA SES DVA GS
Notice of proposed removal All evidence and a right to representation Same Same
Minimum response to proposal period 5 b-days 7 b-days 7 b-days
Minimum time to implement removal 22 b-days 15 b-days 15 b-days
Maximum period to decide to remove None 15 b-days 15 b-days
Appeal MSPB DVA grievance MSPB
Time to file appeal 22 b-days [not specified] 10 b-days
Evidence burden Preponderance (51%) [not specified] Substantial (±40%)
Time to decide appeal 120 c-days (goal) 21 c-days 180 c-days (firm)
Mitigation authority? Yes [not specified] No
Challenge to appeal Fed Circuit Court Fed District Court Fed Circuit Court

There are some amazing little nuggets tucked away in here, if you know what to look for. As an example, by using the confusing b-day language, the law actually increases the minimum response time for a removal (and also for a short suspension). Dollars to donuts that was not the intent of the drafters. Separately, the language placing a time limit on MSPB’s review of an appeal by a GS employee refers to the decision by the “administrative judge.” Well, what about the time required for the three Board members to consider the petition for review of the AJ’s decision? Or, does the law’s language that the 180 c-day time limit applies to “a final and complete decision” of the AJ mean that there is no AJ decision review by the Board members?

From an employment law position, one of the most significant changes here is the reduction of the agency’s burden of proof in a misconduct removal from a preponderance of the evidence to the lower substantial evidence standard. Yet even if legally significant, a quick review of the reversed DVA cases that got Congress all riled up does not reveal a problem with the preponderance standard of proof. For example, in Graves v. DVA, CH-0707016-0180-J-1 (2016), an SES demotion case, the judge believed DVA’s evidence and upheld the charge. However, she found the penalty to be unreasonable because a superior to the appellant did the same thing that the appellant did, and he was not disciplined. I’m running stupid as to how lowering the evidence standard from preponderance to substantial would have caused the judge to reach a different conclusion. The judge agreed with the facts, but did not agree with DVA’s judgment about what to do with the facts.

By far, the most significant change for those of us on the front line is the no-mitigation of the penalty change. Probably half of the effort that goes into a removal case these days is defending the penalty. The stupid disparate-penalty Terrible Trilogy philosophy that the Board members dreamed up in 2010 has scared us all so much that agencies have become afraid to fire people because some other employee somewhere else in the agency did the same thing and was only suspended. Apparently, the Douglas Factors will no longer apply. Or, will they? Since the Board can no longer mitigate a penalty, will it just start setting aside the removal altogether if it disagrees with the seriousness of the charge? Or, will it uphold a removal for a five-minute tardy, outstanding performer, 20-year clean record, if DVA concludes that removal is the proper penalty? So many questions to be answered as the case law develops.

And that won’t be happening anytime soon because the Board decision-making machinery has been inoperable since the first week of the year. If we have usable precedent by this time next year, I’ll be amazed.

Finally, there are some statutory “fixes” in here that make no sense. For example, the act says that, “A covered individual so demoted may not be placed on administrative leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the covered individual reports for duty or is approved to use accrued unused annual, sick, family medical, military, or court leave.” Well, gee willikers, we never placed employees on administrative leave in that situation anyway. Might as well pass a law that says, “Things that fall must fall down, not up.”

It appears to us here at FELTG that the drafters of this legislation do not understand our system. I mean no disrespect by that statement as ours is a complicated statute. However, if we’re going to see any new big across-government legislative fixes to federal employment laws, for the good of our country, let’s all hope that the staffers on Capitol Hill who draft legislation like this take the time to figure out what changes will really make a difference. This is not something to gut-out and do what feels good. This is something crying out for professional thought and deep experience.

Operators are standing by: 1-888-at-FELTG. The first six minutes of consultation are free. Wiley@FELTG.com.

Well, We Never Saw This One Before

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By William Wiley, June 14, 2017

Here at FELTG, we’ve seen a lot of things. In fact, sometimes we smile when someone comes up to us at a seminar and says, “I have a very unusual situation.” Ha, ha, ha, we chuckle silently. It might be unusual to you, Buddy, but we’ve seen it all before. As Farmers Insurance says in their TV ad, “We know a thing or two because we’ve seen a thing or two.” Yeah, us too.

So the incoming question below took us back a bit. We’re comfortable with the answer, but we have to admit, we’ve not run into this situation before. And there’s certainly no case law to rely upon. From a long-time reader:

Dear FELTG-ites,

I am a LER Specialist at a federal agency.  While assisting a manager in addressing the poor performance of an employee, we discovered that the employee’s work was being completed by a full-time union official. When confronted, the employee admitted the union rep had done the work for him.  After confronting the union official about the misuse of official time, he declared that official time was necessary to assist one of the unit’s members. How should I approach taking action against the union official?

Our FELTG response:

Dear Loyal Reader-

The answer as far as we’re concerned is strictly political.

  • We discipline to correct behavior. In other words, we don’t do it to punish. Therefore, if you can stop the union official from doing this again, you have done America a service.
  • The harm to the agency as to a loss of time is not significant. One way or the other, the union official was not going to be doing his regular government job. In fact, one could argue that he actually did the agency a service because instead of doing union business, he was doing productive agency work. Maybe he should get a Special Act award.
  • That last sentence is a joke, by the way :).
  • We’d say you have three options:
  1. If you want to keep your union/management relationship low key, you write the official a big fancy letter from the head of labor relations that tells him that doing what he did is harmful to the agency and that you will not tolerate it in the future. If he wants to do government work, he can cut back from full time union representation and return to his regular position.
  2. If you want to fire things up a bit, or don’t really care about the tenor of your relationship with the union, you can discipline the union official with a Reprimand. He will then file a ULP or a grievance, and you’ll be off to the races. Make sure you AWOL him for any time he spent doing this guy’s work so that he loses pay.
  3. Or, you can ignore the union official. Focus on the employee who misled his supervisor by having someone else do his work. That, combined with unacceptable performance just might warrant a removal. If I thought about it longer, I might even conclude that if all this occurred during a PIP, you could discount the work done by the union official, fail the employee during the PIP, and have yourself a nice easy 432 removal. Take this route and I guarantee that the union official won’t try this again.

I have been doing federal employment law for 40 years. This is the first time I have run into this one. Thanks for making my day.

By the way, folks. If you’ve seen that Farmers Insurance ad mentioned above, you know that the stories are told as the old guy walks the young guy around the Farmers “Hall of Claims” museum that is dedicated to all the surprising accidental mishaps that Farmers has insured over the years. That got me thinking; wouldn’t it be cool if we had a museum like that for all the crazy things that federal employees have done that got themselves fired? I can just see the tourists lining up on The Mall now. Wiley@FELTG.com

The Fate of Political Appointees

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By William Wiley, June 14, 2017

Oh, so many questions do we get. And this one is asking to peer into the secret world of political appointment.

Dear FELTG Know-it-Alls:

I have a question about something you posted in your 5/24/17 post entitled, “Big News in Whistleblower Land.”

Your post stated that Principal Deputy Special Counsel Mark Cohen is set to become Acting Special Counsel after June 14–the end of Special Counsel Lerner’s holdover period.  However, how are political appointees like Mr. Cohen permitted to stay beyond the tenure of the politically-appointed agency head?

My recollection is that all of the political appointees under the last two Special Counsels left when the agency head left.  That office did not have any political appointees again until Ms Lerner joined OSC in 2011.  I don’t understand why it would not be the same with Ms Lerner.  Thank you for any clarification you can provide. 

Best regards, A Confused Reader

And our always-insightful FELTG response:

Dear Confused Reader-

There’s nothing automatic about the end of a political appointee’s status as an employee. When a new agency head replaces the outgoing political appointee, the fates of the remaining political appointees are in the hands of the new appointee.

For example, I was a political appointee under the Chairman at MSPB. When his term expired, the Vice Chairman automatically became the Acting Chairman. She asked me to stay around as an adviser to her, which I did. I’ve known of political appointees who have held over like that under six different agency heads, serving as a political appointee under five Presidents for nearly 30 years.

At OSC, there is no individual identified to automatically replace the Special Counsel once her term is up. Therefore, it is up to White House personnel to decide who will be the acting agency head. They could have picked an old senior career guy who then would have decided what to do with the holdover political appointees. Instead, the White House chose to appoint a holdover political appointee, Mark Cohen.  If Henry Kerner is confirmed as the new Special Counsel, he will then decide what to do with the Obama holdover politicals.

Many subordinate political appointees realize that their time is short when an agency head departs. Smart ones start looking for replacement employment long before that happens, as there’s no way to tell what will happen when the new agency head arrives. That’s why you often see the whole team of political appointees leave an agency when the agency head leaves. They are reasoning that it is better to control one’s own fate than to leave it up to vagaries of the political processes.

Want to be a political appointee at OSC? Now’s your chance. Make friends with Henry Kerner and you could well be the new deputy (if your politics are right).

Best of luck. Wiley@FELTG.com

What the Devil are Essential Functions?

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By William Wiley, June 14, 2017

I wish I was as smart as Ernie Hadley and Deb Hopkins. Ernie and Deb teach the fabulous FELTG EEOC Law Week seminar at least twice a year. A big part of that program is an explanation of an agency’s obligation to accommodate an employee’s disabilities. To understand that responsibility, an agency practitioner must be able to identify the “essential functions” of the position occupied by the disabled employee.

So exactly what is an “essential function”? As Ernie and Deb explain it, summarizing from 29 CFR 1630.2(n)(2), here are factors to consider in determining if a job function is an essential job function (rather than just a non-essential function):

  • The reason the job exists is to perform that function
  • There are a limited number of employees available to perform the function
  • The function is highly specialized such that incumbent is hired based on expertise or ability to perform that function

To determine which functions are essential and which are not, Ernie and Deb summarize from 29 CFR 1630.2(n)(3) to identify relevant factors:

  • Employer’s judgment on functions that are essential
  • Written position description
  • Essential function must be one that the employer requires employees to perform
  • Time spent on function
  • Size of the employer’s available workforce
  • Employment history of other employees previously or currently in the position at issue
  • Consequences if not performed, and
  • Terms of collective bargaining agreement

Once we identify a job’s essential functions, we then have the employee take those functions to her physician for assessment. The physician’s assessment involves the answering of three questions relative to each impacted essential function:

  1. What is the expected duration of a medical limitation that would prevent the employee from performing the function?
    • This information helps the agency determine whether the medical problem actually meets the legal definition of “disability” and if so, what accommodation might be reasonable.
  2. Is there an accommodation that the agency can provide that might help the employee perform the function?
    • If the physician says “no,” and the agency cannot identify an accommodation after discussing the matter with the employee, then the next step is to try to find the employee a vacant position in which he can perform acceptably with the disability.
  3. If the physician recommends an accommodation, what is it and how will it allow the employee to perform the function?
    • The physician’s recommendation is a good starting point, but of course, as Deb points out in the first article in this edition of our newsletter, the agency retains the right to determine which accommodation it will provide if more than one is reasonable.

And here’s where I hit a disconnect between what EEOC’s regulations say we are to do and the reality of getting an analysis from a health care provider. It seems that EEOC wants us to identify a job duty as an essential function, one that might be found in a position description; e.g., “cases mail” from the position description of a mail carrier. But if we ask the physician to tell us if the employee can “case mail,” how does the physician know what the physical and mental requirements are to do that work? Does it involve moving things around? If so, what size and weight might those things be?

I was working with a client several weeks ago, a client trying to figure out how to accommodate a disabled employee. The client dutifully read the employee’s PD, considered the factors listed at 29 CRR 1630.2(n)(3), and determined that an essential function of the position was “timekeeping audit.” As I was drafting the memo requesting that the employee obtain his physician’s analysis of the function in consideration of the employee’s disability, I was struck by how little information we were providing to the health care provider, information on which we are asking the provider to base a medical determination critical to the employee’s continued employment prospects. I guess the provider could ask the employee what the physical and mental requirements are to “audit timekeeping,” but do I really want the employee providing that information to the physician? Shouldn’t it be management who decides what the mental and physical requirements are of a position?

So instead of just telling the physician that the employee needed to perform the essential function of “timekeeping audit,” I came up with the following derivative functions:

  1. Must be able to think objectively and analyze mathematical information.
  2. Must be able to communicate orally and in writing.
  3. Must be able to work in stressful situations sometimes involving confrontation with coworkers.

These functions seem to me to be different from what EEOC is asking for. They are not “the reason the job exists,” but rather physical and mental tasks the employee must perform to accomplish the job. Still, they seem to me to be more realistic requirements to ask the health care provider to assess than simply saying “cases mail.”

Fortunately, Ernie and Deb understand EEOC regulations better than do I. They do a terrific job of explaining this stuff to our seminar participants. As for me, thank goodness they can do it so that it is not an “essential function” of my position. If it were, I would need to be on the lookout for a vacant job into which I could be reassigned where I don’t have to understand EEOC.

Now, wouldn’t that be just lovely. Wiley@FELTG.com