Federal Employment Law Terms of Art: The Right Definitions

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By Deborah J. Hopkins, March 4, 2025

A lot has been happening in the Federal workplace, especially related to employees being placed on admin leave, thousands of probationary terminations, and the beginnings of reductions in force. So FELTG has put together a mini-glossary of terms that we think you’ll find useful.

Administrative/admin leave: leave status imposed by an agency, where employees are sent home but retain full pay and benefits while not being assigned any work. Limited to 10 days per year for investigative purposes; other purposes (not defined in the regulation) do not have a cap. See 5 USC 6329a(b); 5 CFR §§ 630.1402-1404.

Investigative leave: a leave status imposed by an agency when an employee is the subject of an investigation and retaining the employee in the workplace during an investigation would be disruptive. Limited to 90 days per year. See 5 CFR §§ 630.1502-1504.

Proposed removal: a letter given to a Federal employee that informs her the agency is proposing to remove her from service (which means, fire her). The letter gives specific reasons about what the employee did wrong (called a disciplinary charge), and why removal is the appropriate outcome (penalty justification). The letter gives the employee a period of time (usually 7-14 days) to respond to the deciding official and tell her side of the story, and it informs her she has the option be represented by someone she chooses (such as an attorney, union official, or personal friend). In most cases, an employee does not have the right to appeal or challenge a proposed removal because it is a preliminary action and not an official action. An employee can, however, appeal a removal decision.

Proposing official: the agency management official who proposes a disciplinary action, including removal. Often this is the employee’s immediate supervisor, but it can be any agency management official.

Deciding official: the agency management official who decides on the outcome of a proposed removal after considering the employee’s response. Often this is the employee’s second or third level supervisor, but it can be any agency management official.

Probationary termination: the separation (firing) of a person who works for a Federal agency who has not yet earned “employee” status (usually someone employed by the government for one year or less; two years for excepted service). See 5 USC 7511 or other relevant statute. Probationers can be terminated quickly for even minor reasons, but the reason must be given to the employee in writing before the termination is effective.

Deferred resignation: an agreement between an employee and an agency that the employee will resign on X date in the future in exchange for something from the agency, such as continued pay through X date. A deferred resignation must be in writing and signed. It is effective and binding on the date it is signed by the second party.

RIF: a reduction in force, the term the government uses to describe a layoff. A RIF is used when an agency abolishes a job position. OPM says RIFs are usually the result of a “reorganization, including lack of work, shortage of funds, insufficient personnel ceiling, or the exercise of certain reemployment or restoration rights.” There are complex regulations that govern a RIF that determine which employees are removed and which employees stay on the payroll. An agency must give an employee notice of its intent to remove him as the result of a RIF. See 5 CFR § 351.

Layoff: a broad term for removing a person from employment for non-disciplinary reasons, such as budget or change in workplace needs. Not typically a term used in reference to cutting the size of the government workforce, but often used outside of government.

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When Overzealous Management Becomes (Potential) Harassment

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By Deborah Hopkins, February 18, 2025

Quick facts:

  • An employee claimed sex-based harassment after her supervisor’s threatening behaviors.
  • The agency dismissed the complaint for failure to state a claim.
  • EEOC remanded for investigation because the facts as alleged could have sufficiently impacted the complainant’s terms, privileges, or conditions of employment.

If I had a dollar for every time an employee claimed “harassment” by a supervisor who was actually just doing their job, I would be long-retired and living life in a hammock on an island somewhere. Many, if not most, allegations of harassment against a supervisor end up being non-meritorious – meaning, not discrimination and not related to the person’s protected EEO categories.

But there’s always an exception. Consider Herta R. v. USPS, EEOC App. No. 2024003913 (Nov. 6, 2024). The complainant alleged her supervisor was harassing her based on sex, and made her feel physically threatened when he:

  • Approached her aggressively;
  • Got close enough to her face that she could smell his breath, then yelled at her and threatened her;
  • Followed her around work for approximately 30 minutes; and
  • “Cornered” her at work, which prevented her from going into the women’s restroom or exiting the building to get away from him.

The agency dismissed the complaint for failure to state a claim (29 C.F.R. § 1614.107(a)(1)), and the complainant appealed to the EEOC. The questions before the Commission included:

  • Whether the complainant was an “aggrieved employee” who suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy (Diaz v. USAF, EEOC Req. No. 05931049 (Apr. 21, 1994)), and
  • Whether the alleged harassment would be sufficiently severe or pervasive to alter the conditions of the complainant’s employment (Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)).

The EEOC found the agency improperly dismissed the complaint because the complainant “sufficiently alleged that she was subjected to verbal or physical threats of violence because of her sex.” Herta R. at 4. As a result, the EEOC remanded the case back to the agency to process the complaint.

This doesn’t mean the complainant will ultimately prevail, but it means the agency is required to investigate the allegations to determine the facts.

Nearly a year passed between the time the complainant made her first harassment allegation and when the EEOC remanded the case, so the agency’s investigation is most likely happening as you read this. There is a lot to consider when investigating issues that occurred long in the past, so check out FELTG’s upcoming training calendar to see some of the topics we’ll be covering in 2025. hopkins@feltg.com

Related trainings;

How to Get to the Federal Circuit when MSPB Loses its Quorum

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Updated June 15, 2025

By Deborah J. Hopkins, February 14, 2025

Last month the Supreme Court allowed Cathy Harris, who until recently was Chair of the U.S. Merit Systems Protection Board (MSPB or Board), to remain fired while her case is pending in Federal court. Harris was serving a seven-year term in a Senate-confirmed position set to expire in 2028 when she was fired by President Trump in February, and her lawsuit claims her removal was illegal because the statute permits removal only for cause and the President had no cause. The Trump administration’s stance is that he should be able to fire the head of any independent agency without cause, and that any restraint on that authority is unconstitutional.

Among other things, the MSPB adjudicates covered Federal employee appeals of their removals from service. Administrative Judges (AJs) hold hearings and issue decisions on the removals, and the judges’ decisions can then be appealed through a Petition for Review (PFR) to the three-member Board.

Because Harris has not been reinstated, the three-member Board at MSPB is without a quorum; at Member Raymond Limon’s term expired Feb. 28 and only Acting Chairman Henry Kerner remains, as a new appointee has not been named. At least two Senate-confirmed members are required to issue decisions on PFRs.

And at a critical time where there’s been an influx of litigation over probationary removals, RIFs, and more, this little agency is crucial to the functioning of the executive branch. From 2017 to 2022, the Board was without a quorum because the Senate refused to vote on President Trump’s nominees from his first term, and as a result around 3,800 PFRs stacked up. This meant there were thousands former employees waiting years to find out if they would get their jobs back. Harris shared in February that 99 percent of the inherited inventory had been adjudicated since the Board regained its quorum in 2022.

So what does this lack of quorum now mean for Federal employees, or those former employees who were recently removed? Well, AJs will still be able to issue decisions of employee appeals, but PFRs of those decisions will stack up until a quorum is restored, just like we saw starting in 2017.

Unless.

There’s a lesser-known alternative to filing a Board PFR that you should know about: filing a PFR directly with the Court of Appeals for the Federal Circuit. If an AJ issues a decision and 35 days goes by without the former employee (called an appellant) or the agency filing PFR at the Board, the AJ’s initial decision becomes the final Board decision. This gives the parties the right to file a PFR of the AJ’s decision directly with the Federal Circuit. 28 USC § 1295(a)(9); 5 USC 7703(b)(1)(A); 5 CFR § 1201.113.

Usually, appellants file PFRs to the MSPB because it’s free, and filing in the Federal Circuit is not – it costs around $600. Also, the decisions on PFRs from the Board can still be appealed to the Federal Circuit – so appellants who go the route of taking the PFR directly to the Federal Circuit are losing an entire step of review.

The Federal Circuit’s scope of review in an appeal from the Board is limited by statute; it must affirm the Board’s decision unless the court finds the decision to be:

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 USC § 7703(c); see Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir. 2010).

Under the substantial evidence standard, this court reverses the Board’s decision only “if it is not supported by ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Haebe v. DOJ, 288 F.3d 1288, 1298 (Fed. Cir. 2002) (quoting Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981)).

In a typical year, the Federal Circuit upholds the MSPB’s decisions about 90-95 percent of the time. We expect we may see more Federal Circuit action in the coming months because the Board is once again without a quorum.  Hopkins@FELTG.com

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The information presented 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.

Federal Employment Law’s 15 Minutes of Fame

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By Deborah J. Hopkins, February 10, 2025

Federal employment law is having a moment.

With the flurry of Federal workplace-related Executive Orders and memos issued over the past three weeks, media outlets are scrambling to keep up, and “experts” are jockeying for press and an opportunity to discuss the laws that govern the executive branch.

At FELTG, we’ve been teaching the law since 2001 – we have instructors who have been practicing it further back than that – and we want to caution you that before you rely on something you read in the media, be sure you vet the source.

To be clear, a lot of employment law experts are relaying accurate information during this crucial time. But just as many are not. Below are just a few of the myths we’ve encountered, with clarifications beneath.

MYTH: The ban on DEIA eliminates agency reasonable accommodation offices.

Clarification: Well, it shouldn’t and it better not, because the law requires agencies to provide the reasonable accommodation process to any employee or applicant who needs it. There has been some confusion, we think, because the “A” in DEIA stands for accessibility. OPM issued a memo on February 5 clarifying that agency RA programs and EEO complaint processes are not impacted by EOs 14148, 14151 and 14173.

The memo says, “[A]gencies should retain personnel, offices and procedures required by statute or regulation to counsel employees allegedly subjected to discrimination, receive discrimination complaints, collect demographic data, and process accommodation requests.”

MYTH: Administrative leave is always limited to 10 days per year.

Clarification: The Administrative Leave Act does indeed limit the use of administrative leave to 10 days per year. 5 U.S.C. 6329a. But OPM regulations, which were finalized in December 2024, clarified the 10-day limit applies only to agency investigations:

§ 630.1404 Calendar year limitation.

(a)    General. Under 5 U.S.C. 6329a(b), during any calendar year, an agency may place an employee on administrative leave for no more than 10 workdays. In this context, the term “place” refers to a management-initiated action to put an employee in administrative leave status, with or without the employee’s consent, for the purpose of conducting an investigation … The 10-workday annual limit does not apply to administrative leave for other purposes. After an employee has been placed on administrative leave in connection with such an investigation for 10 workdays, the agency may place the employee on investigative leave under subpart O of this part, if necessary (see 5 U.S.C. 6329b(b)(3)(A) and § 630.1504(a)(1))… (bold added)

Because the regulations are so new we don’t have any case law interpreting what “other purposes” might be covered. Historically, though, admin leave has been used for everything from voting to sending someone home after an accident in the workplace. We’ll likely soon learn whether the current large-scale administrative leave orders across some government agencies will meet the “other purposes” identified in the regs.

MYTH: A probationary employee can only be separated from service for performance or conduct reasons.

Clarification: As we’ve both written about and taught, probationary employees can be terminated quite easily (they must be given the reason in writing), and they have very limited appeal rights. 5 U.S.C. 7511(a)(1)(A)(i). Probationers are only afforded the right to appeal a termination to the Merit Systems Protection Board if their removal was based on:

  • Partisan political activity,
  • Marital status, or
  • Pre-appointment reasons.

See 5 C.F.R. 315.804-806; Starkey v. HUD, 2024 MSPB 6 (2024). Probationers also have the right to file a complaint with the Equal Employment Opportunity Commission if they believe they were terminated because of civil rights discrimination, and with the U.S. Office of Special Counsel if they believe they were terminated in violation of a prohibited personnel practice. So working backwards from the rights and corresponding case law, it appears any legitimate business-based reason for a probationary separation would afford a probationer no appeal rights. This is currently being tested as large swatch of probationary employees are being terminated from agencies, and unions are pursuing litigation over the terminations.

Also, I clarified this last week on a LinkedIn discussion: A supervisory probationary period is different from an initial appointment probationary period. If a supervisor happens to be in her initial appointment one-year period and also in her supervisory probationary period, then yes, she can be separated without due process (subject to those exceptions noted above). But the supervisory probationary period is different in that if an agency decides the supervisor is not a good fit in the role during the first year as a supervisor, the agency can return the supervisor to her previous, non-supervisory position or its equivalent, 5 C.F.R. 315.907(a). This does not give the agency a right to remove the supervisor, who has already successfully completed her probationary period, from service without due process.

Plenty more myths are circulating, with new ones almost every day, to stick with FELTG and we’ll help clarify during this very busy time. And if you have questions, please Ask FELTG. hopkins@feltg.com

Upcoming Training on Executive Order Compliance

This article was updated with new information on wide-scale probationer terminations on February 14, 2025.

The information presented 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.

And Now a Word With … EEOC GC Karla Gilbride

By Dan Gephart, January 7, 2025

Equal Employment Opportunity Commission General Counsel Karla Gilbride doesn’t work directly in the Federal sector, but when it comes to reasonable accommodation, the areas of concern are strikingly similar.

“Like all employers, the Federal government is run by people who have many demands on their time,” Gilbride said. “As a result, ensuring that disabled employees are included on terms of equality and are properly accommodated can sometimes fall through the cracks.”

“Federal managers and supervisors, as well as human resource professionals, must ensure Federal agencies have clear and effective policies and processes in place to allow employees to make requests for reasonable accommodation and that those requests are considered in a timely and thoughtful manner. Our workers are truly our greatest asset. We can’t do the work of serving the public without first serving our employees by providing accessible and equitable workplaces for everyone.”

As 2024 wound down, we caught up with Gilbride to discuss reasonable accommodation trends, the Pregnant Workers Fairness Act, requests for medical documentation, and more.

DG: It’s been almost a year since you’ve been sworn in. What stands out most about your first year as General Counsel?

KG: I have been incredibly impressed with the commitment and professionalism I see from the career staff at the EEOC. People here are truly dedicated to the mission of the Commission to root out employment discrimination and have devoted themselves to doing that every day. I am grateful to have this opportunity to lead the agency’s litigation program and continue its legacy of preventing and combatting discrimination in our society.

DG: We are in the early days of the Pregnant Workers Fairness Act (PWFA) and there is still some confusion. Tell us how it differs from the ADA.

KG: In FY2024, EEOC filed five lawsuits under the new law, one that we have already settled, and resolved two charges through public conciliations. We are also working hard to get the message out about what this law does.

Importantly, it fills a gap in protections from other Federal anti-discrimination laws, including the ADA and the Pregnancy Discrimination Act (PDA) under Title VII. Under the ADA, a pregnant person must prove their condition rises to the level of a disability to qualify for a reasonable accommodation. The PDA is limited in that it prohibits pregnant workers from being treated worse than other workers similar in their ability or inability to work, which means that in order to bring a claim under that law, a pregnant worker would need to be able to point to a similarly simulated non-pregnant worker who was treated better.

The PWFA, on the other hand, requires certain protections for all pregnant workers, regardless of whether they would qualify as having a disability and regardless of how non-pregnant workers are treated. As an example, the law requires employers to provide reasonable accommodations for the known limitations of the pregnancy, childbirth, or related medical conditions, which includes lactation, of a qualified employee, in addition to prohibiting employers from taking adverse action against workers based on pregnancy, childbirth or related medical conditions.

In addition, the law prohibits an employer from requiring an employee to accept an accommodation other than a reasonable one that has been arrived at through the interactive process, and it also prohibits an employer from requiring an employee to take leave, whether paid or not, if another reasonable accommodation is available. The regulations under the PWFA also establish that some of the most commonsense accommodations, like providing additional restroom breaks, time to eat or drink, the ability to have water readily available, and to stand or sit as needed, will almost always be considered reasonable and should not require medical documentation.

DG: Some of the early cases seem to show employers failing to make some of those simple temporary accommodations. What else are you seeing so far in the early enforcement of PWFA?

KG: Requiring medical documentation, particularly the volume and detail that may be required under the ADA, is one of the most common violations we’re seeing. Many employers are not yet familiar with the PWFA and assume that when someone requests a pregnancy-related accommodation, it is the same as requesting one for a disability, but it is not.

The PWFA does not require an employer to ask for medical documentation, and the employer may only do so when it is reasonable under the circumstances (such as when it’s necessary to determine if an employee qualifies for an accommodation and what kind of accommodation). Another very common mistake, which we often see under the ADA as well, is requiring the employee to go on leave while the employer figures out whether the employee qualifies for an accommodation and if so, identifying the available accommodations. But as explained above, forcing an employee to take leave is expressly prohibited by the PWFA if another reasonable accommodation is available.

One other unique feature of the PWFA, which will be new to employers, is that a reasonable accommodation may be the temporary suspension of an essential job function. While this is not permissible under the ADA, it is explicitly allowed for under the PWFA, as long as the person can perform the essential function again in the near future and their inability to perform it temporarily can be accommodated without undue hardship to the employer.

DG: Technology is evolving quickly, but that doesn’t guarantee accessibility. What should Federal agencies consider when upgrading technology to ensure it is barrier-free?

KG: When considering technology upgrades, it’s critical for Federal agencies to seek out and consider feedback from all employees, including those with disabilities, to ensure that it is truly accessible. This is not only a good practice to ensure that everyone with a stake in the outcome is consulted, but it is also required by Section 508 of the Rehabilitation Act, which mandates equal access and usability for people with disabilities whenever a Federal agency procures or develops electronic and information technology.

Too often, employers do not proactively and thoroughly test whether a new software program they’re considering or other changes they’re making to the workplace will create unintended obstacles for employees with disabilities, but it’s far more expensive to try to correct accessibility problems on the back end after a new product has been purchased or a new system has been rolled out. As with many other issues, an ounce of prevention is worth a pound of cure, not to mention the message of inclusion it sends when the perspectives of disabled employees are affirmatively sought out and valued. Employers will serve their organizations and employees better by thinking about accessibility from the beginning and including it as a factor in RFPs and other procurement processes. There are also many organizations, like state vocational rehab agencies and the Job Accommodation Network (JAN), that employers, including Federal agencies, can consult for free about how to make new technology accessible to all workers.

DG: When it comes to ADA, what do employers/supervisors most often fail to understand?

KG: We see some of the same issues that I mentioned earlier with regard to the PWFA, particularly in the areas of requiring unnecessary medical documentation and immediately placing people on leave when they request another accommodation.

Only medical documentation which is absolutely necessary for an employer to determine if an employee is entitled to a reasonable accommodation, and what kind of accommodation, is permissible. What is necessary may be quite limited, depending on the disability.

In most cases, this will be only a brief note from a medical professional stating the employee’s disability, which may include identifying a major life activity that is substantially limited, if that is not already known or obvious; the functional limitations of the employee relevant to the requirements of their job; and possibly a specific requested accommodation.

We also see employers placing disabled folks on leave for long periods of time while they consider reasonable accommodation options but then extending indefinitely those leaves, which are usually unpaid. In many of those instances, a reasonable accommodation was readily apparent and available. One more common mistake we see employers make is requiring a doctor’s note clearing the employee to return “without restrictions” from a medical leave of absence even if the person can still do the job with some restrictions through a reasonable accommodation. Those sorts of one-size-fits-all, inflexible policies violate both the text and the spirit of the ADA, which is all about recognizing that not everyone will do the same job exactly the same way and that variations in the human condition in terms of ability should be embraced and accommodated, not dismissed as disqualifying, because they mean that more of us will be able to contribute our talents and perspectives in the workplace.

DG: If there was one thing you could tell Federal supervisors that you think would make the workplace more inclusive, what is it? 

KG: Making the workplace more inclusive is incumbent upon all employers, whether they are Federal or private. The same advice would apply to all employers, and that is to see people for who they are as individuals and what they can each bring to the table.

Every employee is unique and brings their own perspective, experience, and skills. Take advantage of those differences by welcoming and valuing them and figure out how they can be used to the benefit of the work you do. Spend the time to find out what each employee is good at and capitalize on that as much as possible, and if you recognize a barrier that may keep some qualified people from entering your workplace or prevent those who are already there from reaching their full potential, think creatively about what you can do to remove that barrier. gephart@feltg.com

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Year in Review: Top FELTG Newsletter Stories of 2024

For six years now, our year-end News Flash has unveiled the most popular FELTG newsletter stories (based on the number of reads and forwards) of the previous 12 months.

The Year in Review often reflects the mood in FELTG Nation. And despite some difficult and anxious times for Federal employees over the past year, your optimism has shown through, as evidenced by the popularity of FELTG Instructor Ann Modlin’s monthly Good News article, which shows up eight times in our review. But even more so, this review shows FELTG Nation’s commitment to ensuring accountability in the Federal government.

That’s not to say we haven’t had some head-shaking stories over the past year, as well as a few stories whose details made us all sick, such as the FBI agent making advances on a 16-year-old girl, or the GS-14 employee who was disciplined for licking a young boy’s feet and toes.

Are there any articles you missed?

January

Removal based upon medical inability to perform is an effective and underused process. And in January, most readers dialed in on Ann’s column as she answered your questions about the charge.

Everyone is talking about hostile work environment these days, but too few understand exactly what is. FELTG readers looked to this article by Dan Gephart for guidance.

February

We love to highlight when and how agencies do the right thing, and when it comes to progressive discipline, the National Park Service provided a textbook example in FELTG President Deborah J. Hopkins’s top-read February article. Meanwhile, Ann answered more reader questions, this time about medical documentation.

March

Dia dhuit (hello) to the article that drew the most eyes in March – Deb’s look at claims of discrimination involving St. Patrick’s Day, including denied requests for time off to participate in a parade, and to alter uniform policy to allow a scally cap.

And the good news about this month? Ann was still answering your questions, this time clarifying confusion over misconduct investigations.

April

When you stay on top of case law as FELTG’s instructors do, you come across your share of examples of disturbing conduct. Deb reported on some of these incidents, including an FBI agent who called his advances toward a 16-year-old girl “mere flirtation.”

Our interactive Labor Relations training classes present scenarios where attendees have to determine whether a meeting is Weingarten or a formal discussion. Oftentimes, they answer “both.” That answer is wrong. Ann explained why.

May

Spring brought a precedential MSPB decision, which added a new step to how an agency determines what absences can be tabulated to meet the “beyond a reasonable time” standard in excessive absence removals. Deb offered her take on the ruling.

Meanwhile, Ann shared superb guidance on harassment from the EEOC’s updated Enforcement Guidance.

June

Rudeness is running wild everywhere, even in the Federal workplace. The behavior detailed in our most-viewed June article is misconduct and as Dan highlights, should not be ignored. In fact, the MSPB noted in one decision it has “frequently held that rude, discourteous, and unprofessional behavior in the workplace is outside the accepted standards of conduct reasonably expected by agencies and can be the subject of discipline.”

Despite understanding the value and importance of reasonable accommodation, supervisors often fear that initial request. But it should not be scary, Ann wrote.

July

When you work from home and share your camera for a Teams or Zoom meeting, your background becomes an extension of the workplace. Ann reminded us of the rules that apply to what you display in your home office.

Frank Ferreri asked: How long is too long for a delay of reasonable accommodation? It’s hard to say, but four years? Um, yes, that is clearly too long.

August

Agencies have the perfectly legal option of handling performance issues under the misconduct procedures in Chapter 75. When should you take that path? How does it work? Deb looked at an MSPB decision that provided some answers.

Frank answered that oft-asked question: Must the employee get the specific accommodation he requested?

September

Readers focused on Deb’s story about the law enforcement officer who bit his wife during an altercation, then claimed she bit herself. Despite the strong removal case against the LEO, he was reassigned instead. To find out why, revisit the article.

Time and again, agencies struggle with reasonable accommodation requests for telework. Frank Ferreri wrote about a recent D.C. Circuit Court of Appeals decision that flipped the script. What if telework is the only accommodation offered – and the employee doesn’t want it?

October

The disturbing stories continued as Deb wrote whether Douglas factors had to be considered when the misconduct involved licking a child’s feet.

Speaking of Douglas factors, we are often asked who should do the analysis. Ann provided the straightforward answer: It’s the proposing official.

November

An employee says he should be exempt from training that discusses the law surrounding LGBTQ+ protections because the subject matter contradicts religious beliefs. How should the agency handle this request for exemption? Is it a request for religious accommodation? Deb explains.

Meanwhile, Dan explained why last chance agreements must make it clear that any future misconduct or unacceptable performance will be considered a breach.

December

Concerned about RIFs? You’re not alone. We answered a reader’s question this month regarding MSPB appeal rights when subjected to a reduction in force, and it is our most-read December article.

If you’ve been humming “What a Fool Believes” over the past few days, you probably read the article on AWOL, where Dan discussed when and why it’s applicable to remove an employee with that charge.

A Final ‘Word’ …

Over the course of 2024, we interviewed numerous Federal employment law and workplace leaders as part of our regular “And Now a Word With …” feature. The two interviews that drew the most reads this past year were our recent discussion with FLRA Member Anne Wagner and our June follow-up interview with MSPB Vice Chair Raymond Limon.

Happy holidays and best wishes for a great 2025. info@feltg.com

And Now a Word With … MSPB Member Henry Kerner

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By Dan Gephart, December 3, 2024

A few days ago, we caught up with Merit Systems Protection Board member — and former Special Counsel — Henry Kerner as he closed in on the six-month mark of his term.

“That’s not a long time, but enough to get my footing,” Kerner said of his time at the Board. “Transitioning from a prosecutor to a judge is a shift in mindset, but it’s one I’ve really enjoyed. Back in California, I had colleagues in the DA’s office who made similar transitions, so I was somewhat familiar with the process. This is a great place to work — collegial, supportive, and focused on doing the right thing every day.”

I asked Kerner about the impact of the incoming administration on the functions of the MSPB.

“The MSPB continues its important work,” he said. “As Board members, we each have defined terms — mine runs through 2030. I’m sure other Board members feel the same way about their terms. Unlike some other agencies that might experience frequent turnover, it’s less common at independent agencies, though it’s always hard to predict the future.”

“Our mission remains steady,” he continued. “The merit principles endure and enforcing them is central to what we do. We’re committed to serving the Federal community and ensuring those principles are upheld.”

DG: First off, congratulations to you, the other members, and the agency for nearly wiping out the inherited  inventory. What’s the mood like there now? 

HK: It seems like people are pretty happy and relieved to have that burden lifted. There’s definitely a sense that we’ve reached a level of normalcy again. I really have to give credit to Ray Limon, Cathy Harris, my predecessor Tristan Leavitt, and, of course, the career staff. It’s been an all-hands-on-deck effort, so I want to extend my gratitude to everyone involved.

Having a full Board — not just a quorum — is a significant milestone for the MSPB and has been especially meaningful for staff who are new and have never worked under a fully staffed Board. Even during the period without a full Board, parties continued filing petitions for review, with about 500 new ones coming in every year. Now, a fully functioning MSPB can provide stability and predictability, which is beneficial for employees, agencies, and the entire Federal ecosystem.

DG: How has your stint as Special Counsel helped you in your transition to the MSPB?

HK: When I became Special Counsel, I found the office in pretty good shape. While I adjusted some priorities and made a few tweaks, the foundation was solid. Coming into the role, I didn’t have much experience in the Federal employment world. My background was primarily as a prosecutor — 18 years in California before moving to D.C. to work on Capitol Hill. That prosecutorial and congressional investigatory experience turned out to be great training for Special Counsel, but I had to build my knowledge of Federal employment law from scratch.

For instance, as a prosecutor, you develop shorthand for legal concepts — like “211” for robbery under the California penal code. Federal employment law has its own language, like “2302(b)” for prohibited personnel practices, which I had to learn on the job. By the time I transitioned to the MSPB, I had a much stronger grasp of that language and the nuances of Title 5. Having spent six years in this world, handling cases with the MSPB and interacting with other agencies, I was able to bring that experience to my new role, which has been incredibly helpful.

DG: How does your role at MSPB differ from your time at OSC?

HK: The job at OSC was primarily a management role — I was the head of the agency with significant management responsibilities. Here at MSPB, I’m a Board member, not the Chair, so I don’t have as much management responsibility.

DG: You bring a lot of expertise and experience on whistleblowing to the MSPB. What is something about the law or the Federal workplace that you only learned as a Board member?

HK: On the whistleblower side, I’m recused from many cases, given my prior role at OSC. Interestingly, some of the matters that come before the Board are areas where I don’t have much prior experience. For example, retirement cases — like disability retirement, FERS retirement, or law enforcement retirement — weren’t something I dealt with much while at OSC.

It’s been an adjustment. The things I know the most about, I now handle the least, and the things I know the least about, I’m doing the most. That said, with the volume of cases we handle, I’ve started to recognize patterns and develop familiarity with these new areas.

DG: Based on the cases you’ve reviewed, what stands out most when it comes to mistakes by Federal supervisors?

HK: I haven’t been at the Board long enough to make a comment on that, but one area that stands out is nexus cases. In misconduct cases, there must be a connection—or nexus—between the conduct and the employee’s duties or the agency’s mission. When the conduct occurs on duty or at the agency, the nexus is almost presumed. But when the behavior happens off duty, such as in a neighbor dispute or a car accident, the connection becomes less clear.

Sometimes, the behavior might not rise to the level of criminal charges but is still used by managers as a basis for discipline. These cases are complicated because they highlight the fine line supervisors must navigate. As Board members, one challenge we face is being limited to the record before us — we don’t always have the full context or history behind the situation.

Many cases involve long-standing workplace issues, but without a fully developed record, it can appear as though the incident is isolated. It’s crucial to ensure the record reflects the broader history and context. When the record isn’t as complete as it could be, it can make evaluating an adverse action difficult, and in some cases, the agency’s decision might not be fully supported by the available evidence.

DG: What trends are you noticing in new PFRs being filed? 

HK: Towards the end of my tenure at OSC, and now occasionally at MSPB, I’ve noticed political viewpoint discrimination cases starting to emerge. It’s not entirely surprising given the current political climate, but it’s something I observed at OSC and see sporadically here as well. While I wouldn’t label it a full-fledged trend yet, these cases have certainly caught my attention, and I wouldn’t be surprised if they become more prevalent over time.

gephart@feltg.com

Related training:

And Now a Word With … FLRA Member Anne Wagner

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By Dan Gephart, November 19, 2024

When Anne Wagner sat down to talk with FELTG over Teams late last month, it had been less than three months since she was sworn in as a member of the Federal Labor Relations Authority (FLRA). But this is far from Wagner’s first rodeo. She spent the previous nine years as Associate Special Counsel in the Office of Special Counsel. Before that, she was a long-time member at the Merit Systems Protection Board (MSPB), serving as vice chair.

And all that was preceded by nearly 20 years as an attorney for the American Federation of Government Employees (AFGE).

“Yes, I’ve had a long career all within the civil service framework. The one common thread in my experience at the MSPB, OSC and here at FLRA is how after 40 years or so that the Civil Service Reform Act and all the extensions within it have been in effect, you’d think everything that could’ve been decided would have already been decided. But it’s incredible how many cases present novel issues and fact patterns that are unusual. It continues to be a very vibrant area of law.”

“In all three instances, I have been struck by the extraordinary commitment of the staff at each agency to their respective missions, the talent that each agency has been able to acquire and sustain, and their dedication to providing high quality work.”

DG: How do your early days at FLRA compare to the similar time frame at MSPB and OSC?

AW: In both instances (FLRA and MSPB), I came in at a time when there were a lot of cases awaiting decision. So, I pretty much had to jump in the deep end of the pool. As daunting as that can be, personally, I find that suits me. I don’t have to think about this new experience. I have to get very focused very quickly on the job I was asked to do.

I’ve now had some time to step back and reflect. In all of the agencies, my colleagues have been wonderful and the cases themselves are interesting and challenging.

DG: What lessons have you learned from those previous jobs that you will apply to your role at FLRA?

AW: The most important lesson is the fundamental importance of active listening. By that I mean, both in terms of listening to staff and work colleagues, but also active listening in terms of the parties. Deep attention to the submissions they filed, or certainly in terms of any kind of communication with them. I think it’s so important to be able to fulfill what we’re charged to do, and that’s been a central guiding truth that has helped me throughout.

In terms of leadership, the primary requirement is to establish trust. I know that seems formulaic to say that. But trust ties in with active listening, that people really believe you’re listening to them, not necessarily agreeing with them, but actively taking in what they’re saying and that you mean what you say and say what you mean.

DG: What is a common thread throughout your career in labor-management relations? 

AW: What has remained the same is the dynamic relationship that agencies and unions have sustained over the course of the Federal Service Labor-Management Relations Statute. In some sense, that dynamic relationship has enabled both management and unions to adapt to the continuous and significant changes facing the Federal government and its workforce.

DG: What is the most pressing issue for the FLRA at this time?

AW: The budget. Our current budget for FY 24 is $29 million or so, which is the same amount of the FLRA’s budget in 2004. That’s not sustainable. We have, I think, half of the FTEs that we had back in 2004. And our caseload has increased. We’re understaffed and definitely would like to see the budget increased to be able to sustain if not add to our capacity to address the thousands of cases that come to us.

DG: Since 2021, FLRA scores on Best Places to Work have improved, and the agency regularly ranks high among smaller agencies. To what do you attribute these scores, and where is an area you’d like to see improvement?

AW: I haven’t been here long, but I can reasonably say that it’s leadership’s commitment to employee engagement. It’s the recognition that individual employee interest is aligned with the FLRA’s mission. To reiterate, the FLRA’s staff has a tremendous commitment to our mission. Also, the leadership instituted a labor management forum that was designed to specifically address employee concerns expressed through the FEVS.

That’s really important. We did something similar at OSC, and it really does move the needle — and not just artificially or superficially. When employees believe that the leadership is genuinely interested in making work life better, it changes how they feel, and that’s reflected in the FEVS.

DG: If you can impart one piece of wisdom to those who supervise bargaining  unit employees, what would it be?

AW: Going back to what I suggested before: Working toward mutual trust is essential. To recognize that unions and bargaining unit employees are as dedicated to achieving the agency mission as management. And keeping that in mind, to work from that foundation of commonality and sustain the trust. gephart@feltg.com

Related training:

The Board Offers Guidance, But Not Much Help, on the New Excessive Absence Standard

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By Deborah J. Hopkins, November 5, 2024

Quick facts:

  • In excessive absence cases, the MSPB now only considers absences beyond the date the agency warns the employee to return to work.
  • The Board did not instruct agencies how much absence post-warning would meet the “excessive” standard.
  • In a new MSPB case, the Board held that 200 hours of absence post-warning did not satisfy the excessive absence Cook criteria.

Remember earlier this year when the MSPB changed the requirements for excessive absence removals in Williams v. Commerce, 2024 MSPB 8 (Apr. 23, 2024)? If not, then you’ll want to update yourself here and then come back to this article for the latest development on excessive absence removals.

Generally an agency is not allowed to discipline an employee for being on approved leave, but an exception exists if the agency can show:

  1. The employee was absent for compelling reasons beyond his control;
  2. The absences continued beyond a reasonable time, and the agency warned the employee that an adverse action would be taken unless the employee became available for duty on a regular basis; and
  3. The position needed to be filled by an employee available for duty on a regular basis.

Cook v. Army, 18 M.S.P.R. 610 (1984).

Earlier this year the Board held in Williams that under element 2, an agency may not consider any absences the employee accrued BEFORE the agency warned the employee he would be removed if he did not return to work by a specific date; the agency may only count absences that occur AFTER the warning.

But Williams involved over a thousand hours of absence post-warning, so our biggest unanswered question after reading the case multiple times:

  • Exactly how many hours of absences will the Board determine is “excessive” post-warning?

Over a thousand hours, as in Williams, sure. But what about 800? 500? 200? Williams didn’t give us any indication where the lower end of the threshold would be, except when it alluded to Gartner v. Army, 104 M.S.P.R. 463 (2007), where the agency successfully proved an excessive absence charge when an employee was absent 333.5 hours during a 6-month period.

Which brings us to today. An employee was removed for excessive absence after she was absent for 1,400 hours over a one-year period. Butler v. FDIC, DA-0752-20-0060-I-1 (Oct. 22, 2024)(NP). In Butler, where the events occurred in 2017 and 2018, the Board retroactively applied Williams and found the agency failed to prove its excessive absence charge because only 25 days (or 200 hours) of straight absence occurred after the agency warned the appellant she was required to return to work. According to the Board:

Such a relatively short period of absence does not prove an excessive absence charge. Stated another way, 25 days of absence is not sufficient to establish that the appellant’s absence continued beyond a reasonable time, and therefore, the agency has not proven its charge of excessive absence. 

Williams at 4-5.

This is the time in the article I’d like to say, “But wait, there’s more!” Except there isn’t more. The Board left it at that and didn’t indicate ANYTHING about how many hours it would take for the agency to meet the “excessive” standard; it reversed the removal and ordered the agency to reinstate the employee with back pay.

Because the line here is not clear, and because we have mountains of case law that shows an agency can justify an AWOL removal for far fewer than 200 hours, at FELTG we are strongly considering moving away from the excessive absence approach altogether, and instead ordering the employee to return on X date, informing them they will be carried AWOL if they do not return, and effecting the AWOL removal after two weeks, if the employee does not report back.

If you have thoughts on this, or if your agency is taking a different approach, please feel free to share. hopkins@feltg.com

Related training:

·     Feds Gone AWOL: What to Do When Employees Don’t Show Up, Feb. 6

Inappropriate Sexual Conduct Costs CBP $40K in Compensatory Damages

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By Deborah J. Hopkins, October 29, 2024

Quick facts:

  • A CBP officer intentionally exposed his penis to the complainant.
  • The agency found the complainant was subjected to a hostile work environment based on that and other incidents.
  • Additional legal research shows the agency removed the harasser for his misconduct.

No matter how much awareness we bring to the topic, there are still far too many instances of inappropriate sexual conduct in the workplace. And when the conduct is not addressed promptly, it can cause continuing harm to the victim.

Consider the case involving a Customs and Border Protection (CBP) officer, in Buffalo, NY. Lelah T. DHS/CBP, EEOC Appeal No. 2021001401 (Aug. 16, 2022). The agency issued a FAD finding the complainant was subjected to a hostile work environment based on sex when:

  • On November 30, 2016, a co-worker (CW-1) pulled down his pants to reveal his camouflage boxer shorts to the complainant.
  • On March 5, 2017, co-worker 2 (CW-2) called the complainant’s name so she would turn her head and look at CW-1, who was exposing his genitals to her.
  • In August 2016, CW-1 and co-worker 3 (CW-3) had conversations in the office about pulling out their genitals in the office and having erections during work and training sessions, and CW-1 said he “worked up a chub” and “put it on the desk” for CW-3 to look at.
  • On August 19, 2017, CW-1 told Complainant he was upset that he was investigated by the Office of Inspector General (OIG) regarding her accusations that he was trying to intimidate, threaten, and discourage her from pursuing her complaints after management issued CW-1 a “cease and desist” memorandum to stay away from Complainant, effective May 5, 2017.
  • In or around August 2017, Complainant was forced to remove herself from the Tactical Terrorist Response Team (TTRT) and enter the bargaining unit to bid on a new position due to the harassment by CW-1.

Id. at 1-3.

In her complaint and signed declaration, the complainant said that as a result of the harassment, she experienced “extreme emotional distress and humiliation,” that “she felt humiliated and anxious as a result of the harassment,” and that “she was concerned for her overall health and safety.” Id. at 13.

The complainant requested, among other things, $125,000 in non-pecuniary compensatory damages, but the agency awarded $40,000 and the EEOC concurred with that amount. The award may have been higher, except some of the statements the complainant submitted in support for her $125,000 request were not signed, and the complainant’s personal statement was also not submitted.

If you’re wondering what happened to the harasser, the case doesn’t tell us. Because EEO cases use pseudonyms, we don’t know his identity. However, the decision does mention “an MSPB proceeding related to the removal of Complainant’s harasser” in relation to an attorney fees request. I surmised that CBP must have removed the harasser, and he must have appealed.

So, I did a little research, which led me to a case involving a Buffalo, NY-based GS-12 CBP officer’s removal for “exposing [his] penis in the workplace.” Burbas v. DHS/CBP, NY-0752-18-0222-I-2, p. 1 (June 13, 2024)(NP). I had a suspicion the appellant might be the harasser from Lelah T., but the NP decision was a bit vague on the details, so I went to the Burbas initial decision (Aug. 26, 2019). After reading the facts there, I am 99 percent certain this is the discipline side of Lelah T. (At least, I hope this didn’t happen more than one time in the Buffalo sector – and once was one too many times.)

Despite the appellant’s claim he meant his conduct as a joke, the AJ and the Board both upheld the removal. hopkins@feltg.com

Related training: