FELTG Provides Training to Congress and the Legislative Branch on Sexual Harassment and other Discrimination

The Member and Employee Training and Oversight On (ME TOO) Congress Act was recently proposed, to help elected officials, employees, and staffers on Capitol Hill prevent and respond to sexual harassment in Congress.

If you’ve followed the news lately, you know there’s definitely a harassment problem on the Hill. “The system to address this problem is virtually unknown to most staffers, very confusing to navigate and tilted against victims,” said Sen. Kristin Gillibrand, D-NY.

According to one of the bill’s co-sponsors, Rep. Bruce Poliquin, R-Maine, “We need to make sure that everybody coming to work feels safe coming to work.”

Did you know that FELTG can provide training on EEO and sexual harassment to the legislative branch?

Our outstanding instructors are thoroughly familiar with the law and processes involving harassment complaints and the Office of Compliance, and can present training from one hour to multiple days on the topics you need most.

Check out our EEO program list, then call us (844.283.3584) or email info@feltg.com today for more information.

Legalized Lying, Part II

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By William Wiley, November 6, 2017

Several months ago, we had an article in our FELTG newsletter about approved lying in an EEOC proceeding. Recently, I stumbled across a similar initial decision by an MSPB judge that gave me pause. Just how far can the requirement for medical record confidentiality be stretched?

The individual in this case applied for and held one of the most onerous jobs in the federal government. He was an FBI special agent assigned to Bureau’s hostage rescue team. Body armor, getting shot at, rappelling out of helicopters; all in a day’s work for those folks. You need to be trusted to have serious physical abilities and solid psychological credentials to provide that kind of important government service. To make sure that candidates for these positions possess all the necessary physical and mental characteristics necessary, the FBI requires individuals to undergo initial and periodic fitness for duty exams.

As part of that exam, our appellant in this case had been asked to list his current medications. In response, our appellant said, “None.” In fact, he said “None” a couple of times over a period of three years because he had a couple of medical exams during his employment.

Well, as it turns out, the answer “None” wasn’t exactly accurate. The appellant had in fact been medically prescribed and was taking anabolic steroids during the time of the exams. He did not disclose this fact in response to the “current medications” question because he believed it to be his “private medical information” and that the FBI did not have a legitimate need to know it. When the FBI eventually found out about the deception, it fired the steroid-taker for providing false or misleading information on the medical form, and lack of candor in the related investigation.

So, what do you think? Does it make for a better country if the FBI knows whether one of its hostage-rescue agents is taking steroids, a type of drug reported to sometimes cause increased aggressiveness? Should an agency be able to demand straightforwardness and candor from its employees during an investigation? Or, is America a brighter beacon if we allow special FBI agents to engage in deception about the drugs they are taking?

Well, if you voted for unidentified drug-taking and deception, you will like the rationale of the Board’s judge in this case. On appeal, the AJ reversed the removal and restored this individual to the agent-hood, reasoning that the FBI’s question about “current medications” was illegal. You see, the Americans with Disabilities Act limits an agency’s authority to demand medical information from its employees to only those medical facts that are consistent with a business necessity. To the judge in this case, that meant that the questions could not be as broad as asking for “current medications” and instead had to be narrowly tailored so that they were no more intrusive than necessary. As the question was illegal under the ADA, the employee cannot be faulted for falsifying his answer to it. Litton v. DoJ, DC-0752-14-1110-I-2 (September 22, 2017) (ID).

I am at a loss as to what the FBI could have done differently. A colleague with whom I was discussing this case suggested that maybe the “narrow tailoring” that would have made the question ADA-compliant would have been to ask the employee if he was taking any “current medications that might affect job performance.” Well, that puts the question on the employee to assess which of his medications might affect his performance. Maybe this guy never heard of “steroid rage.” It doesn’t seem practical to leave it up to the employee to decide which of his drugs could cause problems at work. The FBI’s medical examiner is in the better position to make that determination.

To me, this is one of those wayward decisions that makes the public think poorly of the civil service. No wonder that there are people on Capitol Hill who would abolish MSPB and the civil service protections when they hear about cases like this. If the Board is going to interpret our laws to allow FBI agents to make false statements about their medications, there really is something wrong with our system.

Of course, this is the opinion of a single administrative judge of the Board. No doubt the FBI will file a petition for review and have President Trump’s new Board members (if any are ever appointed, that is) review this decision. Perhaps those appointees will see things differently, recognizing that individuals have rights to medical information privacy, but not to the extent of deceiving their employer who legitimately needs the information.

Until then, let’s look on the bright side. If you are a medical-marijuana card-carrying civil-servant of states like my home of California, if your agency asks you what medications you are taking, according to the rationale of this judge, you don’t have to tell them about the dope. If your agency gets all specific and asks you if you’re using marijuana, perhaps that question exceeds what is called for by “business necessity.”

But, what do we know here at FELTG. Best to get your own legal advice on that before you try it. We love to read interesting cases, but we don’t like to cause them. Wiley@FELTG.com

Are You Qualified to be a Congressman or Senator?

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By William Wiley, November 1, 2017

Let’s say that you’re a big Capitol Hill policy maker; Member of Congress, Senator … take your pick. Then, let’s say that you want to add extra protections for your beloved whistleblowers. You want to make it easier for management officials who mistreat whistleblowers to be suspended and fired from government. You don’t think that the management official’s employing agency has been doing enough, that upper management at the agency does not act to discipline individuals who have mistreated whistleblowers. So, what do you do?

An easy answer is that you find somebody other than the employing agency to do the disciplining. An outside agency, unlike upper management, does not have a dog in the fight. When you look around for another agency, you find one that routinely has to decide whether prohibited personnel practices (PPPs) have occurred. As whistleblower reprisal is an obvious prohibited personnel practice, you might consider having this agency do the disciplining.

But wait! You come to realize that just last month, that same agency had been ordered to cough up a half-million dollars in attorney fees in a PPP case that it had prosecuted. It had proposed the removal of a management official based on eight charges, each an incident in which this outside agency had believed that it had preponderant evidence that the PPP had occurred. On review, the judge ruled that this outside agency had failed to present ANY evidence that ANY of the charges could be affirmed. The judge went beyond simply ordering fees, and criticized the outside agency’s theory that it put forward in support of its prosecution:

  1. Guilty people usually deny their guilt,
  2. The manager being prosecuted denied her guilt,
  3. Therefore, she must be guilty.

Woof.

It might not be a good idea to put that outside agency in charge of proposing discipline of a manager for reprising against a whistleblower. That agency has demonstrated in a very public manner – and at least one judge has concluded – that it does not know how to prove a charge (something we have taught for 20 years in our FELTG seminars). Probably best to look elsewhere for a removal-initiator based on suspected whistleblower reprisal.

If you have reached this conclusion, then you now have one more reason that you will not fit in on Capitol Hill. In a bipartisan piece of legislation, Congress unanimously passed, and the President signed in to law, a bill that this outside agency – let’s call it the Office of Special Counsel – should have the authority to:

  1. Conclude whether whistleblower reprisal has occurred, and
  2. Order the employing agency to propose a suspension, then removal for a repeat offender.

Keep in mind that OSC was created in large part to protect whistleblowers from reprisal. Therefore, it has a strong motivation to find whistleblower reprisal. By doing so, it makes Congress happy, and Congress tends to fund agencies that make it happy. With no impartial review, under this most recent bill OSC will have the authority to order an agency to propose a minimum three-day suspension for a first offense of mistreatment of a whistleblower, and termination for a second offense.

Are you thinking that this is crazy? Well, don’t stop me now because I’m just getting rolling.

In a rational world, if OSC found what it believed to be whistleblower reprisal, it would propose discipline to a judge at MSPB, and the judge would adjudicate whether the charge was affirmed and the penalty was reasonable. This is what OSC has been doing for four decades. Under this new legislation, instead of initiating proposed discipline and standing to win or lose when MSPB issues a decision on the proposal, OSC simply orders the employing agency to propose the suspension/removal. The decision regarding the proposal will then be made by a senior manager in the agency, an agency that may well not believe that whistleblower reprisal has occurred. If the agency’s deciding official does indeed conclude that removal is warranted, then it’s the agency – not OSC – that has to devote its resources to defending the removal before MSPB. As icing on the cake of judicial irrationality, it appears from a cold read of the bill that the burden in one of these removals is on the manager to prove he did not reprise, not on the agency to prove that he did.

Double-woof.

Here at FELTG, we sincerely regret that OSC lost a prosecution that resulted in it being ordered to pay a good chunk of its annual budget as attorney fees. Those are wasted tax dollars and a harmed management official that do nothing to help us have a better government. However, this legislative trick of having OSC order an agency to take the heat by directing the agency to do the disciplining, regardless of the agency’s independent view of whether discipline is warranted, is ridiculous.

Here are the details of this mess. The new legislation is named the “Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017” and empowers IGs, MSPB, and an assortment of judges to require that agencies propose the discipline of whistleblower reprisers. The decision that orders OSC to pay a whole bunch of money as attorney fees is Coffman v. OSC, CB-1215-14-0012-A-1 (September 29, 2017).

As they say in the poker business, “Read ‘em and weep.” Wiley@FELTG.com

What Do You Have to Do to Show that You are Incapacitated?

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By Deryn Sumner, October 24, 2017

As we discussed in August’s edition of the FELTG newsletter, the EEOC’s Office of Federal Operations is cracking down on granting extensions on deadlines to file appeal briefs.  In one canned response my office received, the EEOC made reference to a need to show that the party was incapacitated during the regulatory timeframe to file the brief.  Incapacitation is used as the standard for other issues of timeliness, including in determining whether there is a basis to extend the timeframe for making contact with an EEO counselor or filing a formal complaint.  So what does one have to do to show incapacitation before the Commission?  As the case law tells us, merely being stuck on your couch binge-watching TV while you fight off the flu is not going to cut it.

Historically, the EEOC has required the party, typically the complainant, to provide medical documentation to demonstrate the inability to meet a deadline because of a medical condition and to show that the medical condition was so severe so as to prevent the complainant from meeting the deadline.  Being taken to the emergency room will typically be sufficient to show incapacitation, as was the case in Zandra N. v. United States Postal Service, EEOC Appeal No. 0120161756 (July 15, 2016).  Being in a residential treatment program is also typically sufficient to show incapacitation, as shown in Complainant v. Department of Agriculture, EEOC Appeal No. 0120133092 (January 17, 2014).

However, medical documentation alone will not always meet that burden of proof.  For example, in a 2015 case, Refugia v. Department of Homeland Security, EEOC Appeal No. 0120151970 (October 3, 2015), req. for recon. denied, EEOC Request No. 0520160076 (June 8, 2016), the complainant submitted a medical certificate in support of her claim that she was under severe stress during the timeframe she had to file a formal complaint of discrimination, which caused her not to be able to timely file the complaint.  The Commission found that although the complainant submitted medical documentation, she did not demonstrate that she was so incapacitated that she could not meet the deadline.

The Commission did recently credit submitted medical documentation in the case of Jutta A. v. Department of Veterans Affairs, EEOC Appeal No. 0120172048 (September 22, 2017) to excuse the untimely filing of a formal complaint.  There, the complainant received her notice of right to file a formal complaint on March 9, 2017, but did not file her formal complaint until March 28, 2017, 19 days after receiving it and 4 days after the deadline.  The Commission found persuasive that the complainant submitted medical documentation from two medical professionals noting that the complainant was experiencing “crippling anxiety associated with various physical symptoms” as well a respiratory tract infection developed during that time.  Given the short period of time that had elapsed between the deadline and the complainant’s submission, the Commission found fit to reinstate the formal complaint for processing.

So, if you plan on asserting that personal incapacitation kept you from meeting a deadline, be prepared to have the medical documentation to support your claim.

Sumner@FELTG.com

A Classic Reprisal Case

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By Deborah Hopkins, October 18, 2017

EEO activity isn’t fun for anyone involved – not for the complainant, not for the agency reps, and not for the supervisor named as a responding management official. But EEO laws exist to protect people from illegal reprisal for engaging in protected EEO activity, and a recent reprisal case from USGS shows us exactly what not to do.

The employee, a hydrologist for the U.S. Geological Survey, filed an EEO complaint based on age (51), sex (male), hostile work environment, and reprisal. The employee’s claims were:

  1. On September 12, 2013, he was notified by the selecting official that he was not selected for the GS-13 Supervisory Hydrologist position;
  2. On September 11, 2013, the selecting official did not try to discern between the best qualified candidates, misrepresented the position and asked him if he preferred a GS-13 non-supervisory or a GS-13 supervisory position;
  3. On September 10, 2013, his first level supervisor instructed him to pull his application prior to being interviewed for the Supervisor Hydrologist position in Rolla, Missouri;
  4. On August 20, 2013, the selecting official told him that the supervisory position was the Selectee’s position;
  5. On August 20, 2013, his first level supervisor instructed him not to apply for the Supervisory Hydrologist position in Rolla, Missouri;
  6. On an unspecified date in October 2010, he did not receive his promotion after being told that he had the director’s approval for the promotion, pending a letter of reference;
  7. On an unspecified date in October 2007 and October 2008, he was not allowed to rewrite his performance standards as another technical specialist was allowed to do;
  8. On October 24, 2013, after he contacted the EEO Counselor, his first level supervisor made remarks to him about his EEO activity; and
  9. On May 9, 2014, Complainant received a Letter of Warning (LOW) from his immediate supervisor subjecting him to a hostile work environment.

As is common in EEO cases filed, the complainant’s claims on age, race and harassment were found to have no merit, but the EEOC did find evidence of reprisal for prior EEO activity:

  • The supervisor offered the employee an incentive to withdraw his complaint, and told him that if management changed and the employee had a good performance evaluation, he would talk with senior management about a new job for the complainant.
  • The supervisor told the complainant he thought he had “pulled the trigger too soon” by contacting the EEO counselor.
  • The supervisor also told the complainant that the EEO process is not “the most enjoyable path for anyone involved.”

The EEOC found that the supervisor “engaged in conduct that was designed to intimidate and/or interfere with Complainant’s EEO activity. We further find that [the Supervisor’s] comments would be reasonably likely to deter an employee from exercising their rights under the EEO statutes, and that the actions and comments by [the Supervisor] were clearly in violation of the anti-retaliation provisions of our regulations.”

As part of the order, EEOC required the USGS to provide “at least eight hours of in-person EEO training to [the Supervisor] regarding his responsibilities under Title VII, with special emphasis on the duty of managers to avoid retaliating against employees.” Octavio C. v. USGS, EEOC Appeal No. 0120150460 (August 16, 2017).

We try to get the word out to your supervisors that while EEO is not fun for anyone involved, making these types of statements is going to be reprisal, every single time. If you need to know more on this topic, Bill and I are holding a webinar called 50 Shades of Reprisal: The Differences between Whistleblower, EEO, Union & Veteran Reprisal on October 26.  Hopkins@FELTG.com

An Open Letter to OPM

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By William Wiley, October 12, 2017

If you regularly read the Washington Post or some other big city newspaper, you no doubt have noticed this: about once a month or so, some self-righteous, opinionated, backwater organization will spend a bucket of money to buy an entire page of advertisement to display an “open letter” imploring some powerful individual or organization to do whatever it is that the open-letter author thinks is important. As our little FELTG training group is nothing if not self-righteous, opinionated, and deep, deep backwater, here’s our full page ad for the month. In the spirit of Martin Luther, we plan to nail it to the door of OPM over on E Street NW, just as soon as we figure out how to nail to plate glass:

Dear OPM,

Late this past summer, you issued a proposed instruction that would place significant burdens on agency officials who need to implement Notice Leave to get an individual out of a government workplace during the 30-day pendency of a proposed removal. Although you promised a final regulation by late September, you decided to indefinitely delay issuing the final version of that instruction for reasons unexplained to the general public.

Hopefully, you made that decision because you got lots of thoughtful comments from readers of this here newsletter and other experienced souls that your proposed regulation was ill-conceived and most likely will get people killed. Well, just in case you’re still thinking about what to do, we offer a single name for your consideration:

Stephen Paddock

Mr. Paddock was the Las Vegas shooter. With no history of violence, no police record, and no documented mental disabilities, he took it upon himself to kill 58 of our fellow citizens, and wound nearly 500 more by shooting at them from an upper floor of a Las Vegas hotel. As of this writing, none of the smart guys has discovered a motive for the shootings. Until we get more information, the best guess is that he just snapped; methodically stock-piling enough guns and ammunition to arm a platoon of soldiers before taking aim and firing at a field of innocents.

We now know that Mr. Paddock had previously been a federal employee for about a decade. He worked at IRS, USPS, and the Defense Contracting Agency, according to media reports. Before you issue your final rule relative to Notice Leave, stop and think for a moment what might have happened if Mr. Paddock had gotten himself in trouble with one of those agencies, perhaps repeatedly coming to work late or failing a performance improvement plan. If nothing else worked to correct his behavior, his supervisor would eventually have proposed his termination, because that’s what we ask our supervisors to do regarding employee accountability.

If your stupid proposed regulation had been in place when that happened, Mr. Paddock’s supervisor most likely would have kept him at work, either in his original workplace in a government building, or perhaps at home on telework where he would still have access to the agency’s computerized data files, maybe even retaining his government credentials that allow him to enter government property. For 30 days. That’s because your proposed Notice Leave rule makes it so difficult for front line supervisors to place an employee in a paid non-duty status, most would not take the trouble to do it. Hey, why should they? Mr. Paddock hasn’t displayed any signs of potential violence. Yes, he’s a grumpy old man, but there are lots of grumpy old men around these days. When you’re putting together the paperwork to fire someone, the last thing you want to do is go through additional paperwork and obtain higher level approval in invoke Notice Leave, as your proposed rule would have required.

Mr. Paddock lived in Nevada, a state with some of the loosest gun laws in the country; e.g., no limit on the number of guns that can be owned and no requirement to have a gun permit to buy a gun. I wonder how many guns and how much ammunition a Nevada resident can amass in a 30-day Notice Period preceding a removal for a government position? And I wonder how much stress a government employee feels when issued a proposed removal notice?

Look, OPM, are you still with us? We implore you. Act like one of the smart guys. You cannot possibly be thinking that 30 days of salary is somehow more important than the lives of our civil servants and the public they serve. You really aren’t interested in denying an agency the ability to use 30 days of paid non-duty time if it saves a civil servant life; you’re interested in curtailing the abuse of this flexibility. So please, rewrite your rule so that, categorically, front line supervisors have the unrestrained authority to place an employee on Notice Leave for 30 days any time a removal is proposed. If you’re concerned about abuse, require all the levels of approval and additional documentation for Notice Leave beyond 30 days as you now have in your proposed rule. Not only might that save lives, as a bonus, it also gives the agency a strong incentive to make decisions on proposed removals promptly.

Come on, come on, come on. Help make America great. Do it for the children. Have a big heart. Get smart. Go green. Take guidance from how the White House fires people. Listen to those of us who have been around a while. Make it easy to invoke Notice Leave and FELTG will personally buy lunch for whoever it is over there that gives the final approval for the rewritten regulation. Heck, we’ll even buy lunch for the whole darned rewrite team, if the change goes through to make Notice Leave easily available.

We have skin in this game, as well, because our speakers work in Federal work spaces throughout government. We don’t want to have to explain to their grandkids that grandpa is not coming home from his last onsite training seminar because of some short-sighted OPM regulation.

And for what it’s worth, you have skin in this game, as well. The next Stephen Paddock could be working right down the hall from you, right now on E Street NW. See him? That guy with the funny mustache and smirk on his face? The one with the Bullets and Bombs magazine in his desk drawer? How’d you feel handing that moron a proposed removal letter?

Yeah, us too.

With All Love and Affection,

FELTG

Wiley@FELTG.com

Painting Your House

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By William Wiley, October 4, 2017

I think that just about everyone at one time or another has painted a room, or perhaps hired someone to paint a room for them. Not as easy as it looks, if you’ve had this experience. And a mess to clean up if you make mistakes.

So let’s say you have a 10-bedroom house, a typical size home for you highly-paid civil servants. You’re busy running the government every day, so you jump on Task Rabbit or some other handyman service, and hire yourself a by-the-hour painter. The guy shows up, has the credentials and experience to do the job, so you turn him loose. You tell him how you want things done: No paint on anything, but the walls. The painter has brought the flat white paint you asked for, so you leave him to do the first room while you go to your highly important desk in that highly important federal agency.

When you return that evening, the painter has finished the work on the first room. He’s left a bill for eight hours of work, which is about what you expected. But the quality of the paint job is not. The face-plates are plastered to the wall with paint. The window glass has ragged edges. The floor has white speckles where it is not supposed to have any speckles. The guy did a bad job.

Pop Quiz No. 1: What will you do when the guy shows up tomorrow morning to start on the second room?

A. Fire him.

B. Give him a second chance.

Yeah, I’d fire the guy, too. Life’s short. Paint’s expensive. There are lots of potential painters on Task Rabbit. Find yourself a painter who can follow instructions.

But wait! Your roommate (husband, wife, whatever) is more forgiving than are you. She implores that you give the dude a second chance; an opportunity to demonstrate acceptable performance. As your roommate is paying for half of the paint job, and as it is her week to do the cooking, you decide to go along with her suggestion in the interest of peace and harmony, and edible dinners.

So when the guy shows up on Day Two for room number two, you reinforce your very specific instructions: face-plates removed from the electrical outlets, masking tape on the glass, and the entire floor covered in tarps. You tell him if he continues to mess up, to fail to demonstrate acceptable performance, you will fire him. Then, you take off for your spare bedroom as you are working flexiplace today.

At noon on your lunch break, you wander down the hall to see how he’s doing on room number two. Sadly, the outcome is no better than yesterday. One of the windows is completely obliterated with paint. The light switch as well as the face-plate is covered in paint. The speckles on the floor today are pink because he brought the wrong color paint. Pop Quiz Question No. 2: What will you do?

A. Fire him. End the misery. Save yourself four hours of pay. He has failed to demonstrate acceptable performance.

B. Let him finish painting room number two, then fire him.

C. Reconsider your original decision to have only one room in which to demonstrate acceptable performance, advise him he can have not one, but a three-room opportunity period, then wait to see how he does after three more rooms.

I have to believe that most rational people would have fired this guy after the first day. If convinced to give him another chance by a soft-hearted roommate, I have to believe that most people would have fired him at noon the second day. Why waste unnecessary money on somebody who cannot do his job? Why put yourself in a position of a) not getting work done that needs to be done, and b) giving yourself a bigger and bigger mess to clean up once it’s all over? Some may come to different conclusions, but I think that most readers would pick A. and A. for our two pop quizzes.

So why in the world do too many practitioners not take this same approach to PIPing a poorly performing federal employee? Here’s what the law has said for nearly 40 years about how a federal supervisor should deal with unacceptable performance:

5 USC 4302(b)(6): Reassign, reduce in grade, or remove employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance.

The law is like your soft-hearted roommate. It won’t let you fire the employee the first time you find poor performance. Beyond that, though, it gives the supervisor significant flexibility to do what needs to be done during the demonstration period. Unfortunately, here at FELTG we run into practitioners all the time who advise supervisors to paint several rooms before firing the bad handyman (e.g., 60, 90, and 120-day PIPs) or insist that the supervisor allow the employee to complete the PIP even if they fail it early (e.g., finish painting everything in the room pink).

Folks, it is rare to find a federal law that doesn’t make sense. It is a nonsensical interpretation of this particular federal law if you believe it means that employees have to be given several months to demonstrate acceptable performance or given the opportunity to finish a PIP if they fail the PIP early. Interpret legal requirements rationally, as you would act in the real world outside the civil service workplace. Even you softies out there would not give a bad painter excessive opportunities to demonstrate acceptable painting ability. There is no excuse for not acting as rationally when you advise a supervisor who supervises a non-performer.

Be brave. Be rational. Advise supervisors to use 30 day PIPs and fire the guy if he demonstrates failure early. If you don’t, we’ll send one of our poorly-trained but highly-motivated FELTG handymen to your office and paint the place pink. That should remind you to be strong.

Of course, if your office already is painted pink, we are jealous. Because we think that pink is a just dandy color for some federal agencies. Wiley@FELTG.com

The Simplest Rule of All

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By William Wiley, September 19, 2017

We routinely invite participants in our FELTG webinars to email us with follow-up questions if we can be of further help. The fundamental question below came from a recent participant who had a head-hanging problem. Unfortunately, it is too late for us to help this time, but next time, she’ll be prepared:

Dear FELTG Sensei-

I struggled for four years with a deeply troublesome employee and I eventually left the job because of him. He was an older male and very crafty. My successors and I had no end of trouble with his behaviors, one of which was to hang his head and stare into his lap at meetings (and generally require us to work very hard to extract more verbal input), keeping his door shut, etc. Nonetheless I’m amazed to know that, as you have taught, I could have implemented a rule that he could no longer hang his head and stare at his lap in meetings, or that his door must remain open unless he’s in a meeting. I have no doubt that if I had issued a written reprimand for one thing, he would then comply, and implement some other troublesome/disruptive behavior. 

So how does one deal with an employee who constantly plays a game of complying with each successive rule and has a dozen other ways to be difficult? I would appreciate your thoughts on this. Many thanks!

And our always-enlightening FELTG counsel:

Dear Participant-

Yep, you really can tell them what to do. I once worked with a supervisor who required an employee to smile at everyone he spoke to at least once a day, and reprimanded him when he did not. The law is a powerful thing if you understand it. Employees really do have to obey their supervisors.

The trick to multi-jerkiness is progressive discipline. First head hanging after being told not to do it = Reprimand. Closing the door later after being told to keep it open = Suspension. A third offense of anything demonstrates that he does not respond to discipline, and a removal is usually warranted. Or, if you really want to be extra conservative, you could give a second, longer suspension. A fourth offense of anything has always been a removable offense. Always. He’s not going to get to a dozen other ways to be difficult because he’s going to be fired way before then.

Hope this helps. Take care out there-

Sometimes it’s the simplest things that drive us nuts. Grasping the concept that if an individual wants to be paid, he must do what his boss tells him is fundamental to being a federal supervisor. As we often say in our seminars, when a new employee raises her hand and takes the oath to be a civil servant, what she is really saying – by law – that “In exchange for getting paid every two weeks, I will:

  • Do what my government tells me to do,
  • Where my government tells me to do it,
  • When I am told it is to be done.”

If she doesn’t want to do any of these three things, that’s fine. They are always hiring at McDonald’s. Wiley@FELTG.com

The Dreaded Yellow Donut

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By William Wiley, September 5, 2017

Here at FELTG from the very beginning of our existence, we’ve taught that the best approach to discipline is to focus on the minimum steps that have to be done and to avoid doing things that have no legal value. The obvious reason we make this recommendation is that the more unnecessary things you do with a bad employee, the longer it will take you to be able to use the ultimate accountability tool: removal from federal service.

The other reason we make this recommendation is a bit more insidious, and a product of our protective civil service system. In reality, just about any personnel action you take with an employee can be challenged through one or more of the redress systems available to federal employees who feel that they have been mistreated. If you do something to an employee and he thinks it is because of his race/sex/age/etc., he can initiate an EEOC complaint against you, involving a big investigation and perhaps even an administrative hearing at which you’ll have to defend your action before a judge. If you do something to an employee and she thinks it is because she’s a whistleblower, gird your loins for an investigation by those tough investigators over at the US Office of Special Counsel. If you do something to an employee and he thinks it’s because he’s a union official, here comes the crew over at the Federal Labor Relations Authority, prosecuting you for committing an unfair labor practice.

If you decide to take formal steps to hold an employee accountable for misconduct or performance, you probably are going to have to defend yourself before one or more oversight agencies, no matter what. For your own sanity and the well-being of your children, you should avoid doing any more to an employee than necessary, because the minimum steps will keep you busy enough, and you don’t want to have to defend yourself any more than you have to.

When we make this point in our seminars, the graphic we use is a three-part bulls-eye target containing all the options a supervisor has when confronted with a bad employee. The outer blue ring symbolizes options we have to admit are options, but they are illegal: DON’T DO THEM. For example, you could spank the employee who doesn’t obey your orders. DON’T SPANK YOUR EMPLOYEES (but it is an option).

The middle of the target is the red bulls-eye. This is where you want to put your efforts: Reprimands, Suspension, and Removals. Those are the primary tools of discipline. We teach that they should be the exclusive tools that a supervisor uses.

That leaves us with options in the middle band, the circle of options around the red bulls-eye middle and inside of the purple illegal options area. These options are legal, but they have no legal value. You do not need to do them to hold employees accountable, and they help you in no way as far as defending yourself should you ever decide to fire the employee. In our seminars, this collection of options has come to be known as the dreaded “Yellow Donut.”

So what are some actions out there in the Yellow Donut that are to be avoided? Well, they are actions we see all the time, often memorialized in agency disciplinary policies: e.g., Admonishments, Letters of Caution, Letters of Warning, Letters of Counseling, and Letters of Expectation. When a supervisor gives one of these documents to a problem employee, it feels as if the supervisor is doing something worthwhile, but she really isn’t. These items do not meet the case law definition of “discipline” in most cases, and therefore cannot be used for the purpose of progressive discipline. Sometimes supervisors tell us that they have been advised by Human Resources or legal staff that these actions are a necessary precursor to issuing something actually worthwhile, like a Reprimand or Suspension. Well, unless your union contract says otherwise, they are not.

Not only are they a waste of time, they also give the employee something to challenge. Last month, I was involved in an OSC investigation in which one of the two personnel actions being challenged as whistleblower reprisal was a Letter of Admonishment. The settlement figure in that case – the amount the agency agreed to pay the employee to have it all go away –  approached a half-million dollars.

In part, for a freaking Yellow Donut.

Look. If you want to stop by Dunkin’ every couple of hours for a delicious glazed yummy, that’s between you and your waistline. But if you want to do this business like a pro, holding employees accountable expediently and fairly, then drop those Yellow Donuts from your disciplinary diet. As Deb always says, they aren’t anything but empty calories. Wiley@FELTG.com

I’ll Never Understand the Hatch Act

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By William Wiley, August 29, 2017

Oh, boy. It hit the fan a couple of weeks ago, didn’t it. “Postal Workers Campaign for Clinton on Government Time!” screamed one headline I saw. Several Congressman have expressed outrage and a couple of oversight chairmen have asked various agencies to produce information related to federal employees participating in “union-official political activity.” Other postal employees had to be paid overtime to cover for the employees out campaigning. The US Office of Special Counsel reportedly issue a finding that postal officials violated the Hatch Act by granting leave requests for employees to campaign for union-endorsed candidates. If you didn’t read closely, you might have concluded that the postal service actually hired individuals just so they could campaign for Democrats.

Well, I just don’t get it. According to OSC’s website, the Hatch Act says that federal employees, like these union folks at the postal service, cannot “engage in political activity while on duty or in the workplace. Federal employees are ‘on duty’ when they are in a pay status, other than paid leave, or are representing the government in an official capacity.” As for off-duty conduct, away from a federal worksite, “federal employees may express their opinions about a partisan group or candidate in a partisan race.”

As for the status of the postal service employees who were campaigning politically, every report I can find that gives any detail says that they were on leave without pay. As I read the Hatch Act and OSC’s guidance, if the individual is not “on duty,” then he is free to “express opinions about a partisan candidate” (e.g., campaign). I’ve been around a long time, and that’s always been the rule. Be careful and refrain from political activity:

  • When on the clock,
  • On government property, or
  • Using your governmental position in some way (sorry we didn’t get this article out sooner, Secretary Carson).

If these guys were in an LWOP status, where’s the Hatch Act prohibition on campaigning? And why in the world would it be the postal service’s management officials who approved the LWOP who have been found by OSC to have engaged in a “systematic violation” of the Hatch Act? If you have had experience with collective bargaining, you know that unions often bargain for time off for things; sometimes paid official time (e.g., to represent in Weingarten meetings) and sometimes unpaid time (e.g., to attend union conventions).

Is the violation of the act found in the fact that the agency knew that the LWOP was being used to campaign? Even if the agency knew of the purpose when it agreed to the excused time off, how does that make it a Hatch Act violation? Individuals are free to campaign as long as they are not on duty time. These individuals were not on duty time. They have a Constitutional right to express their political views (freedom of speech and association, as I remember my Constitutional law hornbook). Just because they earned the right to be on non-duty time through collective bargaining doesn’t seem to me to make this into a Hatch Act violation on the part of agency management. What if an employee had individually asked for LWOP (or annual leave) to campaign. Would it have been proper for agency management to deny that request? I don’t think so. Denying a leave request for political reasons seems a lot more like a Hatch Act violation than does what happened here.

I’ve never worked at OSC and been responsible for giving out Hatch Act advice. However, I have helped adjudicate a couple of charges of Hatch Act violations brought by OSC. Even so, I am the last person in the room to claim to be a Hatch Act expert. And with all those disclaimers, I have to admit ignorance. How this is a Hatch Act violation on the part of postal service management (or the individuals in the postal service union) has got me befuddled. I think I’ll take some leave without pay to consider it more deeply. Wiley@FELTG.com