Answering OMB’s April 2017 Directive

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By Barbara Haga, May 2, 2017

I am chalking this column up to doing my patriotic duty.  OMB Directive M-17-22, Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce, dated April 12, establishes a number of initiatives for changing what work is done and how work is done within the Federal government.  Agencies have a deadline of June 30, 2017 to prepare a plan to maximize employee performance.  Paragraph D.iii.1 requires that agencies review their procedures for dealing with poor performance and conduct and to “… specifically review whether their policies create unnecessary barriers for addressing poor performance.”  OMB is requiring agencies to remove steps not required in statute/regulation to streamline processes for dealing with poor performance and to establish clear guidance on the use of PIPs.

I have seen many of these “unnecessary barriers” that are included in agency performance plans and union contracts in the past ten years, so I am making a list of what needs to be eliminated.  Of course, for some of you this will mean bargaining your way out of things that someone agreed to in the past.

Barbara’s Top Four

Being in this top four list is not a good thing.  These are things that either drag out the process, allow employees to get away with doing less, create extra hoops for managers, or give employees more things to challenge through the grievance process.  We don’t need any of that.

  1. Setting a time frame for a PIP. There is nothing in 5 USC 43 or 5 CFR 432 that establishes a minimum time frame for a PIP.  Why would an agency do so?  Should it not be what is reasonable for the position?  One agency I have worked with has established a five month improvement process – a 30-day pre-PIP and then 120 days of an actual opportunity period.

If it is a GS-6 Accounting Technician who is performing hundreds of transactions in a month is 30 days not enough?  If is a GS-14 Aerospace Engineer at NASA working on design of a new spacecraft, maybe we need 90 days to get enough results to be able to make a determination whether the level of performance has improved.  It depends on the complexity of the work.

What difference does it make if we HR practitioners are just overly cautious and make a PIP extra long?  The longer the PIP the more burdensome it is on the manager who is supervising the employee.  Believe me, I know.  I have done two of these actions on employees who worked for me.  Remember what a PIP is – the employee is performing normal work assignments in as normal a work situation as the manager can provide.  However, the manager has to review the work on the elements under which the employee is on notice, determine what is correct and what isn’t, document all of that, and burn up the copy machine keeping copies of all of that work – all while doing everything she would normally be doing, meeting frequently with the employee on the PIP and keeping notes about that, and not being obvious to the other subordinates about what is going on.  It takes its toll.  The employee is, and has been, paid to perform this work and he should be able to perform it.  The managers are not the bad guys in this process, so we shouldn’t put a more onerous requirement on them than what is necessary.

Recommendation:  Revise your performance plan to say what 5 CFR 432.104 says about the length of the PIP:  For each critical element in which the employee’s performance is unacceptable, the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee’s position.

  1. Mandating extensive amounts of assistance. We should also remember that the PIP is not intended to train an employee on the work their position requires – they are supposed to have the ability to do the work already.  It is an opportunity for them to show that they can perform at an acceptable level with assistance.  Some agency PIP requirements include reviewing every single piece of work the employee performed, even when it is a higher grade position. I don’t view that as assistance; it essentially is taking on the employee’s responsibilities.  In other words, the work requirements are watered down so much that even if the employee meets the PIP requirements she isn’t performing at grade.

Other agencies include assignment of mentors to the employee in the PIP.  If the employee is already qualified to do the work of the position, why would he or she need a mentor?  If, because of the span of supervision, the manager is stretched too thin to be accessible to the employee and someone is covering that management capacity to give guidance and review results of work, I am not sure the term “mentor” is accurate – work leader sounds more like it.  Mentors aren’t usually supposed to judge – they offer guidance and suggestions.

Recommendation:  Make sure that the performance system does not require anything further than “The employee will be provided assistance, which will include regular feedback from the rater on the elements in question during the PIP period.”  Anything beyond that which the agency chooses to give is just whipped cream on top!

  1. Requiring that an Unacceptable rating be assigned. There is no requirement in law or regulation that an Unacceptable rating be assigned in order to take an unacceptable performance action.  In order to propose a downgrade or removal based on unacceptable performance 5 CFR 432.105(a)(4) requires that the notice contain “both the specific instances of unacceptable performance by the employee on which the proposed action is based and the critical element(s) of the employee’s position involved in each instance of unacceptable performance.”  Requiring assignment of a rating does a couple of things.  The worst is that it creates another grievable action (or at least a request for reconsideration depending on your appraisal system) that will be running at the same time that the adverse action is being proposed and decided, using the same evidence that will be reviewed in the 432 action.  No practitioner in his or her right mind should want that to happen.

To assign a rating, you must also meet the minimum appraisal period established in your performance plan.  That is typically 90 or 120 days.  If you were beginning an action near the beginning of a cycle, your PIP would have to be at least that long.

Recommendation:  Eliminate any requirement to assign of a rating of record of Unacceptable at the end of a PIP or in order to proceed to a performance-action.

  1. Using Minimally Successful ratings. If your agency includes a Minimally Successful level (Level 2) on the element (summary ratings don’t matter here), then it is time for it to go.   If you have Level 2 then the maximum amount of improvement you can require an employee to reach during a PIP is Level 2 (try reading these cases if you don’t believe me: Jackson-Francis v. OGE, 107 FMSR 73 (2006); Henderson v. NASA, 111 FMSR 173 (2011); and Van Pritchard v. DOD, 112 FMSR 27 (2011).  Your friends at agencies that don’t have a Level 2 rating on a critical element can demand that their employees reach Fully Successful (Level 3) performance to successfully complete their PIPs.

At a minimum, Federal agencies should be able to hold employees to Level 3.  Allowing an employee to hang out at Level 2, potentially for years, and losing just their within-grades and some of their retreat rights in RIF, is crazy. But if you have a Level 2, that’s all you can require.

Recommendation:  Change your element rating scheme to eliminate Level 2 on a critical element.  Level 2 in the summary rating scheme also needs to go if you don’t have non-critical elements.

I wish I had more space.  I could have put together a longer list!

Attend a special program on this topic: Maximizing Accountability in Performance Management, July 25 in Washington, DC.

We Should Stop PIPing Bad Performers

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By William Wiley, April 25, 2017

Any of you readers who have been to any of our training sessions probably fell off of your bar stool when you read the title to this article. That’s because here at FELTG, we have sung the praises of Chapter 43 removals ever since we started presenting training sessions two decades ago. They are easy to do if you know what you’re doing and darned near bullet proof on appeal given the low standard of proof necessary to establish that removal is warranted.

Well, we are not abandoning that theme. We still believe that removals using the procedures found at 5 CFR 432 are preferable to starting a 5 CFR 752 misconduct action. What we are writing about today is the concept of a PIP. Perhaps it’s time for a change.

As we always do in our training, we begin with the law. Here’s what the statute has said since 1978 about firing poor performers from the civil service:

Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for … removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance. 5 USC 4302(b).

A PIP as it is used in most every federal agency is an action that notifies the employee of prior unacceptable performance, then establishes a period into the future during which the employee has to perform acceptably or be fired. Observe that the law says nothing specific about a “performance improvement plan.” If you think about it, an agency could give an employee the statutory “opportunity to demonstrate acceptable performance” simply by giving the employee performance standards, an adequate amount of time subsequently to demonstrate whether she can do the job, then remove her if she failed to perform acceptably. The law does not say you can fire a poor performer “only after notice and a subsequent opportunity to demonstrate acceptable performance.” One could argue, if one were into statutory construction, that had Congress intended that there be notice, Congress would have called for notice in the law.

Unfortunately, that’s not how OPM interpreted the law back in the day. Given its statutory authority to issue implementing regulations, OPM came up with the requirement for notice to proceed an “improvement period” prior to an agency being allowed to fire the poor performer. That’s where we got the acronym “PIP.” The first set of regulations that OPM issued to interpret this part of the Civil Service Reform Act called for a formal “performance improvement period” to proceed any removal for failure to perform acceptably. Subsequently, OPM spruced up its regs a bit and changed (without explanation) the name of this period into a “performance improvement plan” thereby retaining the acronym PIP. Today, OPM’s regulations use no term that fits the acronym PIP, and instead revert to the original statutory language that refers to “a reasonable opportunity to demonstrate acceptable performance.” 5 CFR 432.104. Although the regulatory language now tracks the law, the concept of notice – arguably not mandated by the law – remains in effect.

Even with all these regulatory name changes, most supervisors we work with here at FELTG still use the old acronym “PIP.” It’s short, sounds nice, and is reminiscent of the backup singers for Gladys Knight. 😉 In fact, in our FELTG seminars, we sometimes exhort supervisors who have a non-performing employee to “PIP ‘em early, PIP ‘em often” just like they vote in Chicago. Well, maybe it’s time for a change.

The acronym PIP, implies an “improvement” opportunity. However, the law calls for a “demonstration” opportunity. Think how these implications are importantly different. If you were to say to me, “Demonstrate whether you can play the piano,” I would sit at a keyboard, move my fingers, and demonstrate very quickly that I cannot play anything at all. However, if you were to say to me, “Improve your ability to play the piano,” I would sit at a keyboard, do some initial finger moving, and then do more finger moving in an attempt to improve my playing ability. In other words, the fact that initially I cannot play the piano is irrelevant to whether I can improve my playing with time.

We don’t get to make the laws here at FELTG, but we do see it as our responsibility to try to understand the law so we can help those of you who attend our seminars do your jobs better and more efficiently. This statute does not mandate that an agency provide prior notice nor does it require an improvement period. It calls for an “opportunity to demonstrate” acceptable performance. We think that the terms in use today – “PIP” and even “opportunity period” – attach the wrong focus to the obligations that come into play when the civil service has a poor performer. The law seems clear to us that the requirement is on the employee to demonstrate acceptable performance with the agency providing assistance.

If it were up to us, we would wave our magic regulatory wand and decree that if indeed we are going to require notice and a subsequent evaluation period, we should drop the acronym “PIP” and instead used the term “Demonstration Period,” maybe “DP” for short. That approach places the emphasis where the Reform Act intended it to be; on the individual employee to show us whether he can perform the job he is being paid to perform.

Here at FELTG, we obviously are not too good at creating pronounceable acronyms (res ips). We have to use a little creative pronunciation to tell people orally who we are. So for the sake of being able to orally reference this new DP, I think it would be OK if we pronounced it similar to a PIP. When speaking we can call it a “DiP,” thereby allowing us to continue our admonishment to supervisors of poor performers, “DiP ‘em early; DiP ‘em often.”

And if you think the urban term “dipwad” seems appropriate, who are we to judge? Wiley@FELTG.com

Taking Advantage of the New Notice Leave Opportunity

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By William Wiley, April 12, 2017

We got a number of good questions following our famous FELTG Case Law Update webinar last week. A couple of them were about the new right that agencies have to avoid administrative leave and to place employees on Notice Leave once a removal is proposed. This is a terrific change, one we’ve campaigned for here at FELTG for nearly 20 years, and a flexibility that could save your life.

Seriously, it could save your life.

The new law empowers an agency to place an employee on paid Notice Leave for the duration of the notice period once a removal is proposed. Here are some related questions:

Hello FELTG Team:

Thank you very much for a wonderful training session this morning! I am very interested in the changes that are coming through the Administrative Leave Act of 2016 and have a few questions for you regarding the information presented.

Extension of Notice Period Beyond 30 Days

In the training, you addressed Notice Leave and indicated that the duration could be extend beyond 30 days. When I read the law, I interpreted it to be much more narrowly construed. The law defines notice period as “a period beginning on the date on which an employee is provided notice required under law of a proposed adverse action against the employee and ending on the date on which an agency may take the adverse action.” Generally, the first point at which an agency may take action under 5 CFR Sec. 752 is at the expiration of the 30 day notice period, which would indicate that the notice leave would expire at the 30 day mark. The interpretation seems to hinge on how “may” is defined. Is it defined as the earliest point when the action may legally be taken or is it defined as once the agency is ready to take action? I much prefer your interpretation that the notice period may be extended beyond 30 days and am interested to hear how you arrived at that conclusion.

Initial 10 Days of Investigative Leave

In the training, you spoke about the first 10 days of Investigative Leave. My understanding is that the first 10 days are considered administrative leave under Sec. 6329a(b)(1) and then the subsequent 30 day periods are Investigative Leave; is this in line with your interpretation of the law?

Employee Quits While on Investigative Leave

Do you have any insight into whether an investigation needs to be completed after an employee quits? The law seems to indicate that the employee has appeal rights if there is an eventual adverse finding. I’m unclear whether the investigation needs to be completed after the employee quits to determine whether there would have been an adverse finding or if you can cease efforts to determine if there was misconduct.

Any insights you can provide are much appreciated and thank you again for a great training session.

And, our FELTG response:

Thanks for your questions, oh wise and inquisitive participant. Of course, here at FELTG we do not claim to know the answers any better than you do as we are all working from the same cold language of the law. But here are my thoughts:

Extension of Notice Period Beyond 30 Days:  To me, the term “may take action” is ambiguous enough for me to interpret it to my benefit until I’m told otherwise. For example, although in most situations an agency “may” be able to take an action at the end of the 30-day notice period, in other situations it may not. For example, if the deciding official has conducted an independent investigation into the charges and plans to use the results of that investigation in making a decision, he may not make that decision until the employee has been given at least seven days to respond to the new information. Or, perhaps the CBA says that the employee will be given 45 days to respond instead of the 30-day statutory minimum. Depending on circumstances, then, the notice period might run beyond 30 days, and the DO may not make a decision until a response is made or waived. Separately, if Congress had intended that Notice Leave be only for 30 days because that is the minimum statutory period, it easily could have specifically limited Notice Leave to 30 days instead of leaving it open to the interpretation of “may.” Since it is to my benefit as the agency representative to have the employee on Notice Leave longer than 30 days in some situations, since the employee has no way to challenge the placement on Notice Leave, and since the employee is not procedurally harmed if I am wrong in using Notice Leave beyond 30 days, I interpret the law to allow me to use Notice Leave beyond 30 days until someone bigger than I am tells me to stop.

Initial 10 Days of Investigative Leave: I have no problem with your interpretation. Close enough for FELTG work.

Employee Quits While on Investigative Leave:  Nothing in this law nor any other law of which I’m aware requires an agency to continue an investigation beyond the separation of the employee. I’m not sure whether it came across in the webinar, but I think this whole record-annotation thing is misplaced effort and does little to improve our civil service while costing us the potential expense of a full blown MSPB appeal. The Latin term I am looking for is “stupid.” Therefore, unless a proverbial gun was placed to my head, I would do whatever is necessary to avoid any of this wasted effort, including discontinuing an investigation short of an adverse finding. Goodness knows we all have better things to do to help run the government.

And, another Notice leave related question:

Dear FELTG-Folk-

During the webinar when discussing Notice Leave, Mr. Wiley made a comment that only 2 sentences would need to be added to a proposal notice.  Unfortunately none of us attending the webinar caught what the 2 sentences were.  Would it be possible to get that information?

Our FELTG best-guess response:

It’s always risky interpreting a law before we’ve had any interpretative guidance from the courts, but here’s what I think we need to say in the proposal letter:

“Effective immediately, I am placing you in a paid leave status during the notice period of this proposed removal. I have considered reassigning you to other duties and allowing you to take other leave, but it is my determination that these alternatives would jeopardize legitimate government interests.”

Since the employee cannot directly challenge being placed on Notice Leave, and since there would be no harmful error even if this language is subsequently found not to be correct, I’m standing by these two sentences until I hear differently.

Hope this helps.  Wiley@FELTG.com

From Confusion, Enlightenment

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By William Wiley, April 4, 2017

OK, so I messed up. Last month, some of you might have read an article we distributed that spoke highly of the value of Last Rites agreements, deals that supervisors can cut with employees so that the employee leaves voluntarily rather than getting fired. Unfortunately, when I drafted that piece, I was just coming off a high fever and a near-death medical experience, and my brain wasn’t working too good. Given that even when I’m healthy, my brain doesn’t work too good, I was in bad shape.

The Confusion

Although I intended for the entire article to be about a Last Rites agreement, I inadvertently used the term “Last Chance” agreement once or twice. Please reread the article, mentally substitute “Last Rites” for “Last Chance,” and you’ll get the meaning I was after.

The Enlightenment

A couple of readers who caught the gaffe noted that they could use an explanation of the two different agreements. Had I not made the mistake, I would not have gotten that feedback nor would I have realized a need for greater clarity. So here comes the enlightenment from my confusing article.

Usually, a Last Rites agreement is negotiated at that point that the supervisor has reached the conclusion that the employee needs to no longer be employed in his position. Many times, the supervisor has already collected enough evidence to propose a removal based on either misconduct or unacceptable performance. Here’s how it works in most cases:

  1. The supervisor or someone on her behalf (attorney, human resources specialist, ombudsman … whomever) approaches the employee with the offer. The employee is told that he has a removal facing him soon, and is offered the chance to resign voluntarily rather than be fired. Some employees see a resignation to be an advantage to being fired because the employee’s Official Personnel File will record a voluntary quit rather than a forced removal.
  2. Supervisors see voluntary quits as an advantage to firing the employee because the quit is effective immediately at getting the employee out of the workplace, and the employee has waived appeal/grievance/complaint rights in a well-worded Last Rites agreement (sample in the back of your copy of the FELTG textbook UnCivil Servant).
  3. The employee has the choice between being fired and exercising appeal rights, or quitting and forgoing appeal rights in exchange for a “clean record.” Sometimes agencies will incorporate a little time off or attorney fees as an extra incentive to resign. MSPB has a perfect record at upholding agreements like these as long as the agency does not mislead the employee.

A Last Chance agreement, as its name suggests, is negotiated between management and the employee at the time that a decision has been made to fire the employee. Usually, it happens like this:

  1. The supervisor proposes the employee’s removal based on some specific act of misconduct or unacceptable performance.
  2. The employee responds and defends herself or asks for mercy from the deciding official.
  3. Then, the deciding official or someone on his behalf (attorney, human resources specialist, ombudsman … whomever) approaches the employee with the offer. The employee is told that the decision to remove her has been made, but that the deciding official is willing to hold the implementation of that decision in abeyance for some specific period of time: often one or two years. In exchange for not being fired immediately, the employee agrees to whatever the agency can get: promises to perform acceptably, to refrain from future misconduct, attend anger management training, apologize, etc. In addition, he agrees to waive rights to appeal/grieve/complain anything related to the removal action being held in abeyance.
  4. If during the abeyance period the employee violates the Last Chance agreement, the agency is free to remove him immediately based on the previous misconduct that was the basis for the agreement (not based on the misconduct that is the breach). The advantage to the agency if this happens is that.
    • The employee can appeal, but he has the burden of proving he did not breach the agreement. The agency does not have the burden of proving the charged misconduct nor does it have to prove that the agreement was breached.
    • The Douglas Factors are immaterial. The employee has effectively accepted the reasonableness of a removal penalty by entering into the agreement.
    • The Board loves these things. It hardly ever sets them aside based on fraud, mutual mistake, or bad faith. Although these are traditional bases for finding contracts to be void, we can count on one hand the number of times these agreements have been found by MSPB to be invalid.

In one of my favorite Last Chance Agreement removals, the Board upheld the termination of an employee who was on an LCA when the employee breached the no-misconduct part of the agreement by sending a single email referring to a coworker as a “kiss ass.” If you draft an LCA tight and broad, you can characterize almost any act of future misconduct as a breach, acts that would not have to independently warrant removal.

Don’t forget: If you’re dealing with a collective bargaining unit employee, you need to invite the union to any formal discussions you have when negotiating agreements like these. In my practice, I have found it useful to explain Last Rites and Last Chance agreements to union officials before I ever need to use them. A good union rep will do a little research and see the significant advantage for an employee to have these options to a removal. In fact, I’ve even had union officials do a little arm twisting on their own to try to get the CBU employee to understand the advantages of these sorts of deals.

If you need more details on tactics to use and language to employ in agreements like these, be sure to sign up for our next class in the art of the deal (civil service edition – otherwise known as Settlement Week) October 30-November 3 in Washington, DC. Wiley@FELTG.com

EEO Complaints and Last Rites Agreements

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By William Wiley, March 28, 2017

Oh, boy. Another great issue raised by a regular-reader who’s just trying to do the right thing:

Dear FELTG-

I am an L/ER specialist who provides advice and guidance to managers on disciplinary and adverse actions, including removals.  It seems like we put forth a lot of time and effort into removing federal employees who then file MSPB appeals. Then, management ends up settling for a few thousand dollars and a voluntary resignation with the employee.  There is also a misconception, in my opinion, that employees who are behaving badly cannot be touched if they file a claim of discrimination.  Managers seem to be gun shy once an employee claims discrimination.  There has got to be a better way!

And here’s our FELTG response to this excellent issue:

Dear Loyal Reader,

You have raised an issue that highlights a significant change in the business of federal employment law. In our early days under the Civil Service Reform Act of 1978, a successful practitioner was seen as someone who built a good case, then litigated the devil out of it by representing the agency (or union) in deposition, hearing, and appeal, never giving an inch and fighting to the bitter end to establish not only victory, but righteousness. Some went so far as to bully and threaten their opposite party, all while strictly following procedure, with the ultimate goal of eventually being declared the “winner.”

You would have thought we were trying to get a bill through Congress, or something. 🙂

Today, for the serious practitioner in federal employment law, whether Human Resources professional, union official, or attorney, we have come to figure out that we are all better off, and the country the stronger for it, when we resolve workplace disputes without going through litigation. When you consider the resource expenditure that is necessary to defend a management action through EEOC, MSPB, OSC, FLRA, or in arbitration (into six figures for a successful management defense before MSPB), you must admit that something that achieves the same result but costs you less is a better deal for America.

And as every seasoned attorney and Human Resources professional knows, that magical cheap tool, the one that guarantees success every time without the inherent risk of litigation, is called a “Last Chance Agreement” (LCA). I cut my first one in 1979 and helped set another one last fall. In between, I’ve seen hundreds, either personally or in cases on appeal to MSPB where I was Chief Counsel to the Chairman during the ’90s. Here’s how they work:

Step 1.  The supervisor initiates the removal process. Perhaps it’s placing the employee on a Performance Improvement Plan (PIP). Or, maybe it’s a proposed removal for serious or repeated misconduct. MSPB recently reported that only about one in five removals that are initiated ever work their way to a decision by MSPB on appeal. Over at EEOC, maybe 1 in 50 formal complaints ever sees a judge. That’s because smart agency practitioners have learned the benefit of cutting a deal, with the ultimate deal being a Last Rites Agreement.

Step 2.  The practitioner, acting on behalf of the agency, offers the employee something in exchange for the employee’s promise to leave voluntarily. You see, the reason we initiate PIPs and propose removals is to get bad employees out of the workplace. If we can accomplish that goal without litigation, the citizens and their government are the beneficiaries.

Step 3.  If the employee accepts the offer, or through negotiation develops an offer that is acceptable although different from the original offer, the parties draft and sign an agreement. Those of you with the greatest and most amazing textbook in our field, UnCivil Servant, will find a sample format in the back entitled “Agency Supported Job Search Agreement.” The agency wants to be sure that it gives something to the employee in exchange for the employee agreeing to leave voluntarily without an appeal. That exchange of consideration is how a contract is made. Agencies that do not give anything have a void contract, according to both EEOC and MSPB. A common ironclad consideration in a Last Chance Agreement is for the agency to place the employee on administrative leave for some period of time in exchange for the employee quitting.

And that’s it. Effective immediately, reversible only if the employee was confused (or lied to) about some underlying fact…an enforceable contract with low cost and immediate results. Unfortunately, I’ve run into some attendees in our FELTG seminars who never heard of this wonderful accountability tool. I once had an attorney tell me that administrative leave was not adequate consideration to form a binding contract. Grrrr. Apparently that individual did not pay attention in his Contracts class in law school.

Another time, a Human Resources specialist asked why such an agreement was not a “constructive discharge.” I was forgiving of the questioner as she had been in the business only a few months and had not had the opportunity to read the case law or be trained before she came to our seminar. A similar question from someone who claimed to be experienced in our work would give me serious pause. We’ve had case law since the ’60s (originally from the old Claims Court) that finds that it is perfectly legal to give a federal employee a difficult choice to make among distasteful options. A constructive discharge occurs only when the employee is given incorrect information, or no option but to resign at the time the agreement is signed.

Finally, on occasion I have run into an uninformed inexperienced practitioner who for some reason thinks that the only way to deal with a problem employee is through the standard regulations found in 5 CFR 752 or 432. “We’ve always done it that way. Why break with tradition? The old processes have worked before.” When I hear that, I picture the person wearing hundred-year-old clothing, standing on the street corner, grumbling to anyone who will listen about “those newfangled horseless carriages. What’s wrong with a horse and buggy? I don’t really mind how slow they are, or how expensive they are to care for – and stepping around all that horse poop is not as much of a problem as people say it is.”

Bonus inside scoop: EEOC and MSPB LOVE these sorts of agreements. Legally speaking, they will say in public how these resolutions support mutual dealing with each side realizing the value in giving and taking without litigation. Practically speaking, and perhaps not-so-in-public, the good folks at the oversight agencies realize that a complaint or appeal settled without adjudication is one less hearing they have to hold and at least one less decision they have to produce; in other words, one additional chance for them to get home in time to have dinner with the kids or watch The World Series of Cage Fighting. You will not find a case decision in any oversight forum that holds that the offer of a bona fide last chance agreement – one based on fact and with consideration – has been held to be reprisal.

And, Lordy, I hope I never see an email from an agency attorney or Human Resources professional that recommends that a bona fide Last Rites Agreement NOT be offered out of fear that the EEO-complaining-employee will file a reprisal complaint. Legally, that would be what we agency lawyers like to call “per se retaliation.” Euphemistically, that would be what our colleagues who work the other side of the table, the folks who represent employees, like to call “the smoking gun.”

In my experience, after they call “the smoking gun,” they next call the Tesla dealer and say, “I’ll be ordering the upgrade model with ludicrous speed.”

If you are not utilizing Last Rites Agreements in your practice, you are failing to deploy one of the most versatile, valuable and efficient tools we have in the field of federal employment law. If you do not know enough to appreciate their value, read the case law. Attend our seminars. Talk with others who have used them successfully. Buy the UnCivil Servant textbook that walks you through the process. There is no excuse for not understanding how to avoid the death-march of EEO litigation with this alternative.

Besides, eventually you’re going to get awfully tired of stepping around all those smelly old horse droppings.

Best of luck. Wiley@FELTG.com

We Need a Theory of Discipline in the Civil Service

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By William Wiley, March 7, 2017

A “theory” is a contemplative and rationalized type of thinking, based on observations, deductions, and conclusions. In other words, it’s a reasoned explanation of the way that things happen and is predictive about how they will happen in the future.

That’s exactly what we need in the world of federal employee accountability, and I think we should be embarrassed that we don’t have one already. Probably every reader of this newsletter is involved in some way in holding civil servants accountable for their misconduct. Yet we as a professional group have no official formal theory to guide us on the best approaches to take when disciplining an employee, an analysis of why we bother to discipline at all, and an integration of that contemplative type of thinking into the laws and regulations that limit how discipline will be administered in federal agencies.

And this is a big deal. For example, do we discipline someone to punish him for an act of misconduct, or do we discipline him to correct his behavior? Depending on your theory of discipline, your answers will be different:

  • Punitive: If the goal is to punish the employee, to take “an eye for an eye,” then we select a discipline option in rough value to the harm caused by the misconduct. Back from lunch 10 minutes late, thereby delaying a coworker’s lunch by 10 minutes? You get a reprimand. Do it again in six months, another reprimand (because the harm is the same each time). For each act of discipline, we weigh the harm, then try to find a punishment of about that value to be administered. Our criminal justice system in general selects punishments in this manner. Each act of criminal behavior stands relatively independent of the others that might have occurred previously in a particular criminal’s life.
  • Corrective: If the goal is to correct behavior, when selecting a penalty option, we would consider the harm caused by the current act of misconduct PLUS the history of prior instances of discipline and their success or failure in dissuading the employee from engaging in future misconduct. The workplace theory of progressive discipline is based on this approach. If two employees come back from lunch 30 minutes late, and one of them has previously been disciplined, then that employee might receive a stronger punishment than the employee who we’ve never had to correct before. In comparison, if the goal were to punish and seek retribution, then both would receive the same penalty regardless of previous attempts to correct behavior.

The reason this is so important is that MSPB seems to confuse these two approaches to a general theory of discipline when deciding appropriate penalties. In most cases, the Board appears to adhere to the corrective approach to discipline, and does so when analyzing the Douglas Factor penalty selection factors. If the employee has prior discipline, then the agency’s decision makers are empowered to administer more severe discipline than they would otherwise. But in other cases, the Board will mitigate a removal to a suspension even though the employee has previously been suspended; e.g., Suggs v. DVA, 2010 MSPB 99. The Board has even been known to mitigate a removal to a suspension of shorter duration than one administered previously. If the goal were to correct behavior, if a 10-day suspension did not do it, why on Earth would you think that a 5-day suspension would be a better subsequent action?

In a related manner, the Board recently has moved away from a theory of discipline founded firmly in progressive discipline. The old Civil Service Commission used to teach that the federal service has a three-strike discipline philosophy:

  • First offense: Reprimand
  • Second offense: Suspension
  • Third Offense: Removal

I remember my Commission instructor in 1977 explaining the three-strike approach by saying that a federal agency does not have to continue to employ an individual who does not respond to discipline; e.g., that responding to discipline by correcting one’s behavior is an important characteristic of being a civil servant.

In comparison, MSPB has moved over the past decade toward discounting prior discipline UNLESS the discipline was administered for misconduct similar to the current act of misconduct. Taken to the extreme, this approach would mean that an agency that has 50 charges in its table of penalties would be expected to try to correct the employee’s behavior RELATIVE TO EACH OF THE 50 CHARGES prior to removing him using progressive discipline. The absurdity of this outcome highlights the fallacy of this approach.

And finally, as we’ve whined about in this here newsletter before, some of the Board’s mitigations of removals to lesser punishments make no sense if our discipline theory is to correct behavior, and make perfect sense if our discipline theory is to punish behavior. We’ve seen cases in which MSPB mitigates a removal to a 30, 60, or 90-day suspension WITHOUT ANY CONSIDERATION ABOUT WHETHER A LONGER SUSPENSION IS MORE LIKELY TO CORRECT BEHAVIOR THAN A SHORTER SUSPENSION. In other cases, we’ve seen the Board mitigate removals to a demotion WITHOUT ANY CONSIDERATION ABOUT WHETHER THAT PENALTY WILL CORRECT BEHAVIOR OR EVEN IF THE AGENCY HAS LOWER-LEVEL WORK FOR THE DEMOTED EMPLOYEE TO DO. The mitigation of removals to demotions and long suspensions is based more on the Punitive theory of discipline than the Corrective theory of discipline.

With all due respect, MSPB should not be in the business of deciding the discipline theory for the federal service. Our leadership components should do that: OPM, senior agency managers, the President himself, perhaps. MSPB should apply the law and enforce that theory, but not make it up, certainly not on the fly and as inconsistently as it has been doing recently. A discipline theory should be borne of line management concerns, not legal concerns.

So what would be the components of a good theory of discipline? Well, aren’t you lucky. Here at FELTG, we have more opinions than the new administration has vacancies in senior positions. If you are at a policy level and are considering developing a theory of discipline for your agency or perhaps for the entire federal government (yes, I’m talking to you, new OPM Director, wherever you are), here are some essential elements of a good discipline policy:

  1. Discipline should be corrective, not punitive. If a discipline option does not have the potential to correct behavior, it should not be used.
  2. There are three (and only three) actions that should be used to correct bad behavior: Reprimands, Suspensions, and Removals. No more Letters of Caution, Admonishments, Counselings, Warnings, Expectations, or singing freaking Kumbaya to the employee to try to get her to do what you want her to do. She either does it or she gets disciplined for not doing it (or you choose to do nothing, if you’re that kind of supervisor).
  3. Suspensions should be avoided. There is no evidence that a suspension is an effective negative reinforcement that acts to dissuade future misconduct. In addition, the agency pays a price when it denies itself the services of the employee via a suspension. It either gets by without the contribution the employee would have made on the days of suspension, or it has to punish coworkers by requiring them to do the bad hombre’s work while he is home watching Fox & Friends. Remember, we’re trying to be corrective, not punitive.
  4. There should be three steps in progressive discipline: 1) Reprimand, 2) Final Reprimand, then 3) Removal if acts of misconduct continue to occur. And for the purposes of progressive discipline, it is immaterial that the prior discipline was for a different type of misconduct. We’re trying to get the employee to obey ALL of the agency’s rules, not just one at a time.
  5. If you have need for the employee’s services in a lower-graded position, you can offer that position to him as an alternative to being removed. If he declines the voluntary demotion, he gets removed. If he accepts the voluntary demotion, he waives any rights he might have to challenge the action.

Get organized. Take control. Develop a theory of discipline, put it into your official discipline policy statement, and go out there and hold employees accountable. Leave the singing of Kumbaya to the lovely and talented Joan Baez. Wiley@FELTG.com

Legal Writing Advice from My Spirit Animal

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By William Wiley, March 1, 2017

When we teach our FELTG legal writing seminars, we sometimes we get a little pushback from attendees who disagree with our “philosophy.” I can understand that. Many of our seminar attendees are very smart people, some educated in the finest law schools in our country. They learned how to write many years ago. They’ve been writing with a comfortable degree of success since then. Why should they change their approach just because some FELTG instructor says that there’s a better way?

Well, maybe it would help to know that our “philosophy” is shared by some gosh-darned important people, people who are typical consumers of legal writing.  I was cleaning out some old files over the weekend and ran across an old legal writing article from a law journal. One of the contributors to the article was a US Court of Appeals judge who just happens to make exactly the same points we do at FELTG when we teach legal writing. Great minds, same paths … it always refreshing to know that really smart people reach the same conclusion that you do.

Here are some pointers from the 30-year old article, pointers that will serve as refreshers for those readers who have attended any of the FELTG Legal Writing seminars:

  • A judge’s eye fatigue and irritability set in well before page 30 of a brief. Keep your writing short and focused and avoid unnecessary language.
  • The law is dynamic and can even be exciting. There is no reason that a legal brief should be dull. Strive for good literature as well as attention-grabbing focus. Make the judge sit up and say, “Hey, this is well-written. Maybe this lawyer actually has something worth my time to read.”
  • Do not use footnotes. Thank goodness these things have in large part moved out of our business. The only exception is the footnoting to case law precedence and other legal authority that FLRA uses for the style of its opinions (a practice MSPB would do well to adopt). If it’s worth saying at all, it’s worth saying in the body of the document.
  • State issues clearly and simply. As noted in the article, “A judge simply does not have the time to ferret out one bright idea buried in too long a sentence.” As we teach in our seminars, if you have written a sentence longer than 30 substantive words, you probably have written too much.
  • A bad brief will make every conceivable argument and even some that are not conceivable. Focus. Focus. Focus. If you have more than three issues in an appellate brief, you probably have too many issues. Arguments gain no increased credibility simply because they are repeated using different words.
  • Write for the 12th grade reader. It makes you be focused, knowledgeable about the issues, and the judge will send you a Valentine’s Day card in gratitude. Seriously. 12th If a judge has to consult a dictionary to understand your writings, you have failed.
  • Your case should be stated simply in the opening paragraph. Do not start out with a list of facts and details until you have provided a framework on which to hang them. A good opening sentence to a first paragraph will start with something like, “We are bringing this appeal because …”
  • Our judge-author also cringes whenever she hears or reads words such as “clearly,” “plainly,” or “obviously.” Every time a judge sees these words, she suspects that the issue is not really clear, plain, or obvious.
  • Citations that are weak or do not support the proposition being put forward are deadly. A judge will doubt everything else you have to say if your citation mischaracterizes a precedent or a factual finding.
  • Don’t be afraid to make a concession if the facts call for it. Judges find such honesty refreshing and will give greater weight to the rest of your argument.
  • Although emotional arguments to a jury might carry the day, you should avoid emotional arguments to a judge, e.g., “This poor innocent supervisor did not reprise against the self-centered, selfish, egotistical whistleblower. He was just doing his job; a job he was hired to do by the American people, to make our country great again.” Judges are swayed by logic, not emotion.

If you’re interested in the full article, you can find it in the September 1988 edition of the ABA Journal. I’m sure you have it lying around your office somewhere. And if you’re interested in the circuit court judge who contributed her suggestions to the article, she’s moved on to another job, a job in which some say she is receiving the best medical care available in America today: Justice Ruth Bader Ginsburg. Wiley@FELTG.com.

Taking a Leak

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By William Wiley, February 21, 2017

Here’s a recent hypothetical phone call between one of our top notch FELTG reporters and a senior career employee at a big federal agency.

FELTG:  So, how’s it going, Buddy?

Civil Servant: It stinks. My new political employee boss is a stupid, incompetent, smelly jerk. He’s improperly funneling a lot of huge federal contracts to his family members. And, he just told me that his brother has been hired as a spy at CIA. How you doing?

It’s getting to where every federal employee probably needs an employment lawyer on speed dial, and to use that phone number before he says anything to anybody. Here’s how this somewhat innocuous statement looks in consideration of federal employment law.

  1. “My new political employee boss is a stupid, incompetent, smelly jerk.” This statement constitutes actionable misconduct. Yes, our civil servant may have a Constitutional right to freedom of speech in general, but a senior agency official saying something like this to a reporter constitutes the charge of Disrespectful Conduct and warrants at a minimum a Reprimand. Federal employees are free to have these thoughts, but not free to express them to a reporter while sitting in a high-level federal position.
  2. “He’s improperly funneling a lot of federal contracts to his family members.” This statement is protected and may not be the basis for discipline. By definition, it constitutes “whistleblowing,” 5 USC 2302(b)(8). An agency may not discipline (e.g., reprise against) a federal employee who discloses violations of law, as this would.
  3. “And, he just told me that his brother has been hired as a spy at CIA.” This disclosure violates a law that prohibits the release of secret information. Therefore, it is not whistleblowing and warrants not just discipline, but also criminal prosecution.

One of the problems we have as a society is that a number of people who talk about federal employees who disclose information have not had the advantage of the legal training provided by the Federal Employment Law Training Group. They give speeches, interviews on television, and hold press conferences in which they lambaste employees who leak information about the internal goings-on in a federal agency. A number of those senior officials have initiated investigations into the leaks with the intent of firing the leak-ees.

Well, here’s the deal, Lucille. There are two kinds of leaks: those that align with the second statement above and those that align with the third. If a federal manager finds out that one of her underlings leaked information to a reporter that discloses a violation of law, gross mismanagement, gross waste of funds, a danger to public safety or health, or an abuse of authority, that employee is ABSOLUTELY PROTECTED by law from discipline, reassignment, a significant change in duties, or any other personnel action that would constitute whistleblower reprisal. However, if the disclosure itself as in the third statement above violates a law against making such disclosures (e.g. the disclosing of secret information), then the employee ABSOLUTELY can be disciplined, fired, and even charged with criminal misconduct.

So when you hear that someone is going after “leakers,” keep in mind that there are good leakers and there are bad leakers, according to the law. Good leakers are whistleblowers who cannot be disciplined, and bad leakers are civil servants who disclose information prohibited from disclosure by law and who can be fired.

Unfortunately, as we wrote about earlier this month, if you leak, you may not know which of the two categories you fall into until after you’ve mortgaged the house to defend yourself in a removal action. Please be careful out there. Wiley@FELTG.com

Too Much Adjudication

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By William Wiley, February 7, 2017

As many of you readers know, here at FELTG in addition to providing open-enrollment, webinar and onsite training, we also have a number of agency legal clients to whom we provide advice and representation regarding employee conduct and performance problems. Recently, we were reviewing the judge’s decision in an unacceptable performance removal case which we had helped the agency construct. Claims of discrimination, unreasonably short PIP, hostile work environment based on age … the usual sorts of appellant claims. And of course, the claims all failed and the removal was upheld. Unacceptable performance actions are soooo easy IF you know what you’re doing.

But enough horn tooting.

The judge in this case did something that we see all too often. It seems innocuous, but it is bad for the overall jurisprudence in federal employment law. Part of the appellant’s argument that the removal was wrong was that his supervisor never counseled him prior to the PIP that his performance was unacceptable. As every graduate of our FELTG MSPB Law Week and UnCivil Servant seminars knows, there are four (and only four) requirements for firing a poor performer:

  1. The agency’s appraisal system has been approved by OPM.
  2. The supervisor has informed the employee of the critical elements of acceptable performance.
  3. The employee was PIPed after demonstrating unacceptable performance.
  4. At its conclusion, the supervisor determined that the employee’s performance was Unacceptable in at least one critical element during the PIP.

5 CFR 432.104, Belcher v. Air Force, 82 MSPR 230 (1999), and a million other cases.

Unfortunately, the judge in our case misread the regulation and the case law and added a fifth requirement: that the employee be warned PRIOR TO THE PIP that his performance was unacceptable.  We’ve learned here at FELTG, when we go through the steps to removing a poor performer that some supervisors cannot believe that a supervisor can PIP an employee without prior warning of poor performance. It just doesn’t seem right to them. Some will argue that a “good” supervisor gives constant feedback to an employee so that a PIP implementation will come as no surprise.

Well, isn’t that just delightful. Maybe indeed a “good” supervisor should give constant feedback. Maybe there should be a requirement that employees be warned about bad performance before the initiation of a PIP. But that’s not the law. Congress in 1978 did not say that a warning was necessary; therefore, it is not. Oh, if you want to warn, if you think it’s good supervision to do so, have at it. Or, get yourself elected to Congress and amend the law. Just remember: all a PIP does is say to the employee, “Do your darned job.” Should you really have to warn an employee that he will no longer have a job if he doesn’t do his job? We leave that up to your good management sense to answer that question for yourself.

The problem in this case is that by

  1. Creating a requirement not found in law, and then
  2. Adjudicating whether this “alternative” requirement indeed is present in the case,
  3. An unsophisticated reader might conclude that in the next case, the agency had better satisfy this “alternative” requirement.

Folks. Our adjudicators should adjudicate the law. In this decision, instead of adjudicating the facts of the case, the judge should have said:

The appellant raises the claim that he was not warned of his poor performance prior to initiation of the PIP. As there is no requirement for a pre-PIP warning, I will not consider this claim further.

As Supreme-Court-Nominee Neil Gorsuch recently said, “A judge who likes every outcome he reaches is very likely a bad judge…” Perhaps a pre-PIP warning is a good idea. However, until Congress says it is, it’s not a requirement.  Decisions that mislead by adjudicating issues that are not really issues are bad for our business. Wiley@FELTG.com

What is This Ominous Picture All About?

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By William Wiley, January 31, 2017

No, this is not one of the inaugural crowd photos that was deleted from the National Park Service website. It is a photo of the big celebration on the Mall a couple weeks ago to celebrate the 38th anniversary of the effective date of the Civil Service Reform Act of 1978. Were you there? Well, although no one else was either, we here at FELTG certainly were (hey, somebody’s taking that picture) because we believe in the importance of federal workers and an efficient accountable government workforce. Plus, we never pass up an opportunity to celebrate anything if food and drink are involved. Be sure to mark your calendars for next year so that you, too, can participate in the big celebration.

Of course, next year the celebration may be even smaller than this picture shows we had this year. Why, you ask? Well, if you have been anywhere other than locked in the bowels of the Mount Weather underground emergency operations center, you will have heard by now that the new administration has declared a hiring freeze for large swaths of the federal government – covering some organizations, excluding others – with Congress considering bills to include/exclude their own favorite agencies.

If you’ve been around for previous hiring freezes, you know that they are a lot like other mistakes in judgment that one might exercise. When something especially good happens to you, for many of us it sounds like a good time to celebrate by having an extra glass or three of a favorite adult libation. Of course, the next morning we wake up and realize that tying one on in retrospect probably wasn’t the smartest thing we could have done the night before. Same result with a hiring freeze. It’s easy to declare one and it sounds like a good way to improve government by reducing the payroll, but in reality, the morning-after hangover tells us that there was probably a better way to get to the same result.

We all know how a hiring freeze works. When a person quits his government job, the frozen agency is not allowed to replace the employee one-for-one. Sometimes there’s a ratio of allowed replacements; sometimes none are allowed at all. According to a recent article in the Washington Post, about 10% of the federal workforce leaves government each year, almost all doing so voluntarily. We don’t have statistics regarding where they go next, but it would seem logical that those who do not retire move on to other jobs in the private sector.

Stay with me as we climb this logic tree. For the sake of having easy numbers, let’s say that 10 out of 100 federal employees (10% of the federal workforce) are toxic; e.g., are bad employees who are not earning their pay check. In a non-freeze year, 10 employees would quit, 10 new employees would be hired, and the percentage of bad employees would stay at 10%.

Now, let’s look at a freeze year. I think it’s fair to say that comparing great employees to toxic workers, the good employees are more likely to leave government than are the weak employees. Good employees get better offers; bad employees often know they are lucky to have a well-paying government job. The good leave. The bad stay put. Again, using easy numbers for illustration, if 10 employees leave the fed during a hiring freeze and are not replaced, we go from 10 bad employees out of 100 to 10 out of 90. That means that now 11% of the civil service is composed of bad employees. If we lose another 10 good employees the following freeze year, we now have 10 toxic employees for every 80 good employees, a bad-to-good ratio of 12.5%. And so on, and so on. Use your own numbers, time frames, and ratios if you prefer, but one thing is clear. If you accept the premise that good employees are more likely to leave government than are bad employees, eventually you will have a federal workforce with a higher percentage of non-performing employees than you would without a hiring freeze.

That’s what I call an unwise hangover.

Another aspect of a hiring freeze that will resonate with readers who have attended any of Deb’s dynamite EEO law seminars regarding the accommodation of employees with disabilities. As all FELTG-trained practitioners know, when working with a disabled employee, an agency is first required to try to modify the employee’s current position so that she can perform its essential duties. If that is not possible, the disabled employee has two other entitlements. In priority order, they are:

  1. Placement into a vacant position for which the employee is qualified, at the same grade anywhere one is available within the agency.
  2. Placement into a vacant position for which the employee is qualified and for which the agency is recruiting at a lower grade.

With a hiring freeze, there are no vacant positions available at any grade. Therefore, the only option for the agency when confronted with a disabled employee who cannot perform an essential job function is removal. The two employee entitlements above become meaningless.

There may well be good reasons for a hiring freeze. Even so, there are also bad outcomes that result from a hiring freeze. One would hope that the decision to impose a freeze is reached only after serious consideration of the morning-after. Wiley@FELTG.com