Ask FELTG: Do managers need to tell employees how to pass each standard and critical element during the performance improvement period?

December 7, 2020

Q: Do managers need to tell employees how to pass each standard and critical element during the performance improvement period?

A: The performance plan is what tells the employee the expectations for each critical element. During the performance demonstration period, the supervisor must tell the employee the specific requirements for what’s an acceptable level of performance on only the critical element(s) for which the employee is on the DP/PIP. Sometimes that means the supervisor has to provide additional guidance about how the employee can achieve the standard: specific assignments, fleshing out vague terms, providing clarity on expectations, etc.

Keep in mind that the higher-level the position, the more the employee is expected to work independently and to know what is expected from the position. For example, a lower-graded clerk may need to be told exactly what format to use when drafting memos whereas a more senior professional should already know this or know how to find it out. Supervisors are not required to provide detailed expectations to employees in the more senior positions, particularly those classified as professional positions. They can, of course, but doing so is not a legal requirement.

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Are holidays counted as hours for Paid Parental Leave?

October 20, 2020

This question came to Ask FELTG with the following hypothetical example:

The expected due date for a baby is December 26, 2021 and the employee is hoping to take Paid Parental Leave from December 11, 2021 through sometime in March 2022. During this period, we have four holidays: Christmas, New Year’s Day, Martin Luther King, Jr. Day, and President’s Day. Does the PPL cover those four holidays or will the employee get an extra 4 days off on top of the 12-week PPL?

Holidays are not counted in the hours of PPL because PPL is first Family and Medical Leave Act (FMLA). PPL is just another bucket of hours to draw from to get paid for FMLA time, so the basic FMLA rules still apply. Here is the reference:

Neither any holidays authorized under 5 USC 6103 or by Executive order or any non- workdays established by Federal statute, Executive Order, or administrative order that occur during the period that the employee is on FMLA leave count toward the twelve-week entitlement. 5 CFR 630.1203(e).

So in the example above, there are extra days off because of the holidays. However, the scenario has one major error. An employee cannot use PPL prior to the birthdate. It applies upon birth or placement, not before.

For more guidance on this new leave entitlement, join FELTG for (any or all of) the virtual training program Absence, Leave Abuse & Medical Issues Week, April 12-16, 2021.

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Is it permissible for an agency to tell a complainant that her coworker will be suspended? Is this disclosure a violation of the coworker’s privacy?

September 21, 2020

This question came in as a response to FELTG President Deborah Hopkins’ recent article Can Delaying Discipline Cause EEO Liability for an Agency? in our August newsletter.

And here’s the answer:

When it comes to federal employee discipline, unless classified/secret information is involved, there is no law that says an agency has to keep employee discipline confidential, if information about the discipline is shared from personal knowledge of the parties involved.

There is case law on the matter: By becoming public officials, the privacy interests of government employees are reduced. Lesar v. DoJ, 636 F.2d 472 (D.C. Cir. 1980). A government employee’s privacy interests may be diminished to the extent it might disclose “official misconduct.” Lissner v. Customs, 241 F.3d 1220 (9th Cir. 2001).

This is different than the Privacy Act, which among other things prohibits people who have access to confidential personnel documents from sharing information with people who have no right to that information. Also, keep in mind that the details of EEO matters need to remain private.

In Eotvos (pro se) v. Army, CH-0752-17-0355-I-1 (2018)(ID), the supervisor involved in the discipline knew from personal knowledge that the employee was being suspended for inappropriate conduct. So, there was no violation of the Privacy Act or any confidential EEO information. In fact, sometimes it behooves agency officials to share discipline information, because it lets employees know that something is being done about misconduct in the government. There may be times it’s best not to share the details, of course, but there may be times it makes sense to do so.

Always keep in mind your agency policy might contain guidance on this topic, or your supervisor might have an opinion on the matter, so it’s best to check those things before you start talking.

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Can an agency consider an employee’s criminal record or previous misconduct when assigning that person to a position?

August 25, 2020

Crime rates dropped suddenly at the beginning of the pandemic. However, several sources are reporting that those rates have started to soar again. Anecdotally, it certainly seems to be the case based on the letters that have come into the old Ask FELTG mailbox recently.

In the first hypothetical scenario provided by a FELTG reader and presented in our headline, the employee has been disciplined after pleading guilty to engaging in criminal conduct of a sexual nature. The employee was temporarily detailed to a non-supervisory position as management tried to determine where to reassign the individual. This is not an easy task, due to the nature of the employee’s criminal activity. Several agency employees, who are aware of the specifics of the criminal case, are concerned about working with this person.

If an employee has been disciplined for misconduct (reprimand, suspension, demotion, removal), he cannot be disciplined again for the same misconduct. If the agency now wishes to remove the employee because of the effect criminal activity had on the workplace, it has the option of canceling the previous discipline and re-issuing a proposal to remove based on the same conduct. As long as the agency makes the employee whole when it cancels the previous discipline, this is an option. Aggressive, but legal.

Because reassignment is not discipline, a reassignment is legal in a circumstance where an employee has already been disciplined. Put another way, an agency can consider an employee’s criminal conviction when deciding where to reassign that person.

Meanwhile, another FELTG reader asked: Is it in the best interest of the Agency to move forward with a Notice of Proposed Removal for an employee with pending criminal charges?

In this hypothetical situation, the reader was concerned about the Agency moving forward with a removal action only to see the criminal charges dropped. What would happen then? Could the employee file an appeal with MSPB to have the removal overturned, allowing him or her back to work?

An agency can absolutely discipline the employee for misconduct that may rise to a criminal level. However, you can avoid the disciplinary action from being overturned if the criminal conviction does not stand, by charging the underlying conduct (for example, striking a coworker) instead of the criminal charge (for example, assault and battery).

The MSPB may stay the hearing until the conclusion of the criminal proceedings (so the employee can focus on her defense), but as long as the agency has a preponderance of the evidence the misconduct occurred, its action is not bound by the result of the criminal trial, since it is a different forum and the standard there is evidence beyond a reasonable doubt. So theoretically the employee might be acquitted, or have the charges dropped, and then the agency could still proceed with the removal appeal.

MSPB addressed this a few years ago in a report, What is Due Process in Federal Civil Service Employment? MSPB, May 2015.

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Who is permitted to be a Deciding Official when the agency is going through a reorganization?

July 21, 2020

This question came into the FELTG mailbag with this hypothetical situation:

A direct supervisor of an employee proposed discipline as the Proposing Official and that person’s second-line supervisor was deemed the Deciding Official. However, during the 30-day period between a Proposal and Decision, the appointed “Deciding Official” referenced in the Proposal notice for the employee to submit his reply was moved within the organization and was no longer the employee’s second-line supervisor. Basically, the supervisor, in this hypothetical, is still the employee’s direct supervisor, but everyone else above him has been altered. And the collective bargaining agreement does not address this situation.

What if the Deciding Official is a supervisor elsewhere in the organization? Or not a supervisor at all? Carrying that through to the Grievance, who would be the Grievance decider? The next person up in the old leadership structure or in the new structure?

And here’s the FELTG reply:

The good news for you is that the Deciding Official (DO) can be anyone in the agency who is a supervisor or manager, or even a management official, and does not have to be in the employee’s chain of command. 5 CFR § 752.404(c)(2) says that the DO must have “authority either to make or recommend a final decision on the proposed adverse action.” Nothing about chain of command exists in the law or regs.

The fact that the second-line supervisor has changed has no bearing on the legality of the decision. Some agencies routinely delegate a DO outside the chain of command, or designate a much higher level authority, such as a regional director, to be the DO.

The Department of Justice has a group of “all-time” DOs whose sole jobs are to make decisions on proposed adverse actions. And yes, in cases of misconduct, the PO can also be the DO as long as she can credibly say her mind was not made up until after the employee’s response.

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Are Douglas Factors now a requirement for all disciplinary actions as opposed to just adverse actions?

May 26, 2020

There’s often confusion around the terms “discipline” and “adverse actions,” because some agencies define those terms differently.

Under the law there are actually two categories of adverse actions — appealable and non-appealable adverse actions. 5 USC § 7103 defines short suspensions (14 days or fewer) as adverse actions, and 5 USC § 7511 defines longer suspensions, demotions and removals as adverse actions. Only those actions in 5 USC § 7511 are appealable to MSPB, so some agencies don’t refer to short suspensions as adverse actions but rather refer to them as discipline. I’m guessing that’s the case with your question.

Douglas is required in appealable adverse actions, but not in non-appealable adverse actions, though the agency still needs to be prepared to justify its penalty to a third party and give some justification for a short suspension. FELTG teaches that Douglas is a best practice to use even for a short suspension because it helps the agency meet the legal requirement to justify its penalty.

To understand more how the Douglas Factors impact the reasonableness of an agency’s penalty, join us for Taking Defensible Disciplinary Actions. But hurry as the event, held over three afternoons, begins next Monday (June 1). For an even deeper dive into discipline and accountability, register for Developing and Defending Discipline: Holding Federal Employees Accountable June 23-25.

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG Answers Your Questions About COVID-19

April 28, 2020

Over the past few weeks, FELTG has received numerous questions about COVID-19, both via email and during our webinars and virtual training events. Here are three of the more common questions, along with answers and guidance, courtesy of the EEOC’s updated guidance on the novel coronavirus.

Why are people talking about the Americans with Disabilities Act related to COVID-19 when COVID-19 is not a disability?

The ADA is relevant to the COVID-19 pandemic in at least three major ways:

  1. It regulates employers’ disability-related inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities.
  2. It prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e. a significant risk of substantial harm even with reasonable accommodation).
  3. It requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic.

May an agency take an employee’s temperature before permitting the employee to enter the agency facility?

Generally, measuring an employee’s body temperature is a medical exam, and agencies are only allowed to administer medical exams in very narrow circumstances. However, because COVID-19 is a global pandemic, and the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, agencies may measure employees’ body temperatures before allowing them into the workplace.

Keep in mind, not everyone who has the virus will have a fever, so agencies are also permitted to ask employees if they are experiencing other symptoms related to COVID-19, such as shortness of breath, body aches, and loss of smell.

If an employee was diagnosed with COVID-19 or was exposed to COVID-19, may the agency require medical clearance before allowing the employee to re-enter the workplace?

Yes, this requirement for medical clearance is permitted under the Americans with Disabilities Act either because the clearance to return to work is not disability-related or, if the pandemic were truly severe, the request would be justified under the ADA standards for disability-related inquiries of employees. EEOC reminds us, though, that doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide official medical certification, so new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have COVID-19.

For more on these topics plus discussions of emerging workplace issues related to the novel coronavirus, join FELTG on Wednesday, May 13, for the virtual training session EEO Challenges in a COVID-19 World.

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Should an agency remove a hypothetical employee for current misconduct when he’s separately being investigated for a security clearance issue, a matter in which the agency is considering an indefinite suspension? Or should the agency wait until the security clearance issue has been resolved? The misconduct is unrelated to the security clearance.

March 24, 2020

Let’s add a little more context to this hypothetical scenario. The agency requires employees to maintain a security clearance as a mandatory condition of employment. When someone’s security clearance is suspended pending review, the agency usually indefinitely suspends the employee.

Here, while the employee’s security clearance is being reviewed but before the employee is indefinitely suspended, the employee’s supervisor informs the agency that she’d like to remove the employee for conduct that is unrelated to the issue with the security clearance.

The agency wants to know: Do we move forward with the indefinite suspension? Do we remove the employee? Do we attempt to do both?

Here’s what FELTG thinks would be the most efficient approach. Propose removal for the misconduct and put the employee on Notice Leave. Once the decision to remove is issued and becomes effective, the security matter becomes moot. If the decision is not to remove, the agency could suspend the employee and then propose an indefinite suspension for the security clearance revocation. There’s no legal mistake in doing both at the same time, it’s just not efficient.

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: What do you think about the recent precedential Federal Circuit case Sánchez v. VA, No. 2018-2171 (Feb. 10, 2020) and its establishing that settlement agreements don’t last forever?

February 25, 2020

Believe it or not, while this case might be designated as precedential, it’s actually not a precedent-setting position on the topic. The majority holding actually tracks old MSPB case law, and, we would offer, common sense. (And also, an old edition of Farnsworth.) Contracts are to be interpreted reasonably.

The dissent in Sánchez takes the position that the agency was committing itself to never reassigning the employee when it entered into a settlement agreement. That would be a significant limitation on an agency’s ability to use its workforce as needs demand, perhaps to the point of keeping open a clinic just for one guy who was assigned there via a 20-year old settlement agreement. If the parties intended something as serious as a promise to abide by the terms in perpetuity, then reason would say that they would have included that important provision in the settlement agreement. They did not. Therefore, nothing special to see here.

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: How would one best charge misconduct involving a subordinate’s attempt to undermine a superior by making false allegations?

January 28, 2020

Our customer provided more details, including a hypothetical situation in which a subordinate claimed that his male supervisor was “hitting on” female customers.

The problem the supervisor would have in this situation is that he might be dealing with whistleblowing. A whistleblower is an employee who makes a disclosure of managerial misconduct that falls into one of four very specific categories. One of the categories is a supervisor’s “abuse of authority.” An abuse of authority is an arbitrary or capricious exercise of power by a federal official that adversely affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons. D’Elia v. Treasury, 60 MSPR 226 (1993). There is no de minimis standard or threshold applied to disclosures of abuses of authority.Wheeler v. DVA, 88 MSPR 236 (2001), Ramos v. Treasury, 72 MSPR 235 (1996).

Here are some examples from MSPB case law:

·     Disqualification of candidates for failing to submit college transcripts when not required

·     Playing games on a government computer

·     Falsifying time sheets

·     False statements to an IG investigator

·     Preferential treatment of a co-worker based on an intimate relationship

·     Promotion based on non-merit factors

·     Belittling and swearing at subordinates

Someone who reports to upper management that a supervisor is hitting on a customer has most likely disclosed an abuse of authority within the definition of whistleblowing. We cannot discipline an employee for whistleblowing.

Let’s say the report of the hitting on the customer is false. If that is so, then you can discipline the employee based on a charge of ”Making False Statements.” Employees who lie when making disclosures are NOT whistleblowers. However, be careful. Even if the employee is wrong about the incident, he is still a protected whistleblower if he had a good faith belief in the truth of what he reported. The good-faith test is this: Could a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee reasonably conclude that the actions of the government evidences an abuse of authority?  See LaChance v. White, 174 F.3d 1378 (Fed. Cir. 1999).

We certainly discipline whistleblowers all the time. We just have to be extremely careful not to discipline them for blowing the whistle.

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.