DOP, DP, ODAP, OIP, PIP: Is it Just Me, or Have Performance Monikers Gotten Confusing?

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By Deborah Hopkins, June 17, 2020

There are a few items in President Trump’s May 2018 Civil Service Executive Order Trifecta with which I don’t necessarily agree. But there are a lot of provisions that actually mirror what FELTG has been teaching for two decades. Among the items that I really like is the directive that employees with performance problems (those performing at an unacceptable level on any critical element) should be given a final opportunity to demonstrate acceptable performance, not to exceed 30 days.

After this EO came out, some agencies revamped their performance policies and changed the language from the existing focus on performance improvement by utilizing a Performance Improvement Plan (PIP) to some other moniker that gives the employee a 30-day opportunity to demonstrate he can perform their job at an acceptable level. The demonstration emphasis more accurately mirrors the language of the statute found at 5 USC § 4302(c)(6). An opportunity to improve could go on for quite a long time, perhaps interminably; an opportunity to demonstrate whether you can do the job you were hired to do shouldn’t take more than three or four weeks.

For what it’s worth, “Acceptable” performance is whatever the line is above Unacceptable – so if your agency has a 5-level rating system then Marginal/Minima/Partial standards count as acceptable performance. That’s right, be minimal is the goal. [“Hey, problem employee: We at the agency would consider it acceptable if you would bring your performance up to minimal. If you do that, you get to keep your job forever.” What a target, huh?]

But, I digress.

Back to poor performance. Articulating the acronym “PIP” is easy. It rolls off the tongue and almost everyone knows what it means. But I am trying to break my PIP habit (two years later), and call it something more appropriate. In the textbook UnCivil Servant: Holding Employees Accountable for Performance and Conduct (now in its 5th Edition), Bill Wiley and I call this 30-day opportunity a Performance Demonstration Period, or DP.  But in my travels across the country to agencies near and far (before the pandemic, when I was on a plane almost every week), and my more recent time in front of a virtual training screen, I have learned there are now several permutations to what Federal employees call this DP.

Demonstration Opportunity Period

  • Acronym: DOP
  • Agency using it: USDA

Opportunity to Demonstrate Acceptable Performance

  • Acronym: ODAP
  • Agency using it: HHS

Notice of Opportunity to Demonstrate Acceptable Performance

  • Acronym: NODAP (As far as I can tell, NODAP is an informal acronym and does not exist in writing in the agency’s policy, but it makes sense to me.)
  • Agency using it: DOI

Opportunity Period

  • Acronym: OP
  • Agency using it: OPM. This is unofficial and hasn’t been verified by the powers-that-be, but we have heard rumors from students that the very agency which gave us the term “PIP” now has adopted a more correct moniker.

Opportunity to Improve Performance

  • Acronym: OIP
  • Agency using it: HUD. As far as we at FELTG can tell, this policy has not been changed to reflect the language of “opportunity to demonstrate” rather than the “improve” language its name reflects.

Performance Improvement Plan

  • Acronym: PIP
  • Agencies (still) using it: Commerce, State, DOD, DHS. It’s interesting. If what I am seeing on these agencies’ websites, where the policies are posted, are up-to-date, a number of agencies – headed up by President Trump appointees – seem to be ignoring the EO’s mandate to move away from the improve/PIP mentality.

So, whether you DOP, OP, POP, ODAP, NODAP, OIP, DP, or PIP, remember the purpose is to allow the employee an opportunity to demonstrate acceptable performance per 5 USC §4302(c)(6), and not to allow the employee a perpetual opportunity to incrementally get better. Hopkins@FELTG.com

Breaking News: SCOTUS Says Federal Law Protects LGBTQ Workers From Employment Discrimination

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By Deborah Hopkins, June 15, 2020

This morning, the Supreme Court issued a decision in Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, 590 U.S. ______ (Jun. 15, 2020). The 6-3 decision was written by Justice Gorsuch. He was joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan.

The question before the Court was whether an individual’s sexual orientation or transgender status was covered under Title VII’s prohibition against sex discrimination. The Court ruled that “The answer is clear. An employer who fires an individual for being ho­mosexual or transgender fires that person for traits or ac­tions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” (p. 2).

AT FELTG, we’ve reviewed the decision and will be re-reading it to be sure we glean all the relevant information. After the initial read, we’ve pulled out couple of interesting points the Supreme Court discussed:

  • If sex was one but-for cause for discrimination – not the motivating factor or the only cause – then Title VII applies. (p. 6)
  • Employers who seek to avoid liability because they discriminate against men and women who are LGBTQ do not avoid liability – they double their exposure to liability because the language of Title VII talks about discrimination against individuals. (p. 9)

A few takeaways directly from the language of the case include:

  • [A]n employer who intentionally treats a person worse because of sex— such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discrimi­nates against that person in violation of Title VII. (p. 7)
  • From the ordinary public meaning of the statute’s lan­guage at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it inten­tionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the em­ployer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to dis­charge the employee — put differently, if changing the em­ployee’s sex would have yielded a different choice by the em­ployer — a statutory violation has occurred. (p.9)
  • The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s be­cause it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. (p. 9)
  • [H]omosexuality and transgender status are inex­tricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some dispar­ate impact on one sex or another, but because to discrimi­nate on these grounds requires an employer to intentionally treat individual employees differently because of their sex. (p. 10)
  • When an employer fires an employee because she is homo­sexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individ­ual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that in­dividual’s sex, the statute’s causation standard is met, and liability may attach. (p. 11)
  • We agree that homosex­uality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosex­uality or transgender status necessarily entails discrimina­tion based on sex; the first cannot happen without the sec­ond. (p. 19)
  • In Title VII, Congress adopted broad language mak­ing it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for be­ing gay or transgender defies the law. (p.33)

We’ll be going over this case in much more detail in future training events including an upcoming EEO Refresher webinar entitled The Latest on Sexual Orientation and Gender Discrimination in the Federal Workplace on July 9, and a virtual training session as part of FELTG’s special event Federal Workplace 2020: Accountability, Challenges, and Trends on July 29.

In the meantime, read the full decision yourself here. Hopkins@FELTG.com

The Employee Who Refuses to Report to Work

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By Deborah Hopkins, June 9, 2020

Back in the day – before COVID-19 – there was a term we used for employees who refused to report to work: AWOL. Or, as our friends in the Navy call it, Unauthorized Absence. The pandemic has created a new scenario though, where a refusal to report to an agency work station might not be considered misconduct, depending on the circumstances.

As agencies start to bring employees back to the workplace, some are understandably wary about leaving the safety (and perhaps comfort) of their own homes and being put back in contact with the public once again. Some employees have more reason to be leery than others, particularly those in high-risk categories.

So, what should an agency consider when an employee expresses concern about returning back to the workplace while the virus is still killing 1,000 Americans each day?

According to OPM, agencies should work with employees and, if applicable, unions, to address return to work concerns even after agency management has determined that it is safe for employees to return. Once an agency has determined that sufficient conditions allow for employees to safely work in a given environment, employees can be expected to report to their worksite unless they are in an approved leave status.

Before issuing an order requiring employees to report to duty onsite, and when considering discipline based on non-compliance with a reporting requirement, agencies are encouraged to consider all facts and circumstances in each case. Among these considerations:

  • An employee’s vulnerability to serious complications if infected with the virus,
  • The presence of an individual in a CDC-identified high-risk category in the home, and
  • Child care or other dependent care responsibilities resulting from daycare, camp, or school closures.

Agencies should determine if other options are appropriate, such as allowing employees to continue to telework or asking them to request personal leave.

If the worksite is in a jurisdiction still subject to restrictions related to COVID-19, agencies should also consider the terms of any such restrictions as well as employee concerns about their safety in the workplace or during commuting, and determine if steps can be taken to mitigate those concerns.

FELTG readers know that federal employees are required to follow supervisory orders, including orders to report for duty, but they may legally refuse orders that would cause “irreparable harm.” These categories, found in MSPB case law, include orders that:

  • Are Illegal, whether the order itself is illegal, or obeying the order would be an illegal act.
  • Are immoral.
  • Require an unwarranted psychiatric examination.
  • Require an employee to forego a Constitutional right.
  • Are unsafe.

We know the first four are not at issue here; safety is the key. The question becomes: What is the balance between working to fulfill an agency’s mission while guaranteeing employee safety and protecting against irreparable harm?

For most employees, contracting COVID-19 would probably not cause irreparable harm. Recent data suggests a large group of the people infected – perhaps even 80% – are asymptomatic. But for a subset of employees in high-risk categories, contracting the virus could very well cause irreparable harm in the form of long-term or permanent health issues. Adding to the complication is that this virus is new, and we don’t have any information about its long-term effects.

So, where does that leave us? If an agency has determined that it is safe to return to the workplace, an employee’s subjective belief that it is not safe – especially if that employee is not in a high-risk category – will probably not be enough to have a disciplinary action for AWOL overturned.

Only time, and cases when we get them, will tell.

I think that agencies should try to be as flexible as possible, as employees are dealing with unprecedented challenges. But at the end of the day, your agency needs to fulfill its mission, and if an employee must be at work in order to do so, and work is a safe place, then the employee should be held accountable to report for duty. For more on this – and other virus-related workplace challenges – join FELTG tomorrow for the virtual training event Federal Workplace Challenges in a COVID-19 World: Returning to Work During a Pandemic. A few spots still remain. Hopkins@FELTG.com

If You Leave an Intercontinental Ballistic Missile Unguarded, You’re Probably Getting Fired

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By Deborah Hopkins, May 20, 2020

A few weeks ago, I wrote an article about progressive discipline, and explained how a time-tested approach to discipline in the federal government provides for a “three strikes and you’re out” mentality, at least when it comes to minor workplace misconduct. There are times, however, when an employee engages in misconduct so egregious that the agency skips the first two steps in progressive discipline – typically a reprimand and a suspension – and jumps right to a removal. After all, an underlying tenet of progressive discipline is that, by disciplining an employee with increasing degrees of punishment, the employee is given the opportunity to learn from his mistakes. Castellanos v. Army, 62 MSPR 315, 324 (May 4, 1994). There are times, though, an agency determines the employee has done something so bad, he should not be given such a chance.

Let’s look at a few of those cases.

You were warned

Sometimes agencies choose to issue warnings to employees, rather than issue formal discipline. A warning is an aggravating factor that is most commonly used under the Douglas factor for clarity of notice: How clearly was the employee on notice that there was a workplace rule in place?

Take, for example, the GS-12 attorney with a discipline-free record who was removed based on two charges: Disruptive Behavior (two specifications) and Making Inappropriate Remarks (seven specifications, including referring to his supervisor’s writing as “crap,” making unseemly accusations, and using a sarcastic or intemperate tone). The agency had issued “four express warnings” and the employee still did not correct his behavior, so the agency proposed removal.  This appellant argued that he didn’t understand the warnings because the language used by the agency regarding “maintaining his composure” was confusing. Nice try, but that expression was an aggravating factor that expressed a lack of remorse. A GS-12 attorney should know what maintaining composure requires, so the MSPB upheld the removal. Pinegar v. FEC, 2007 MSPB 140.

One strike and you’re out

Some charges, by their very nature, have been recognized to be removal offenses even if there is no prior discipline. One such charge is Failure to Cooperate in an Investigation. Take a look at the following cases which all involved some version of an employee refusing to participate in agency-authorized investigations: Weston v. HUD, 724 F.2d 943 (Fed. Cir. 1983); Negron v. DoJ, 95 MSPR 561 (2004); Hamilton v. DHS, 2012 MSPB 19. Also check out Sher v. VA, 488 F.3d 489 (1st Cir. 2007) (Courts have repeatedly held that removal from employment is justified for failure to cooperate with an investigation).

Another charge where there’s not always another chance for the employee is Threat, or some version thereof (such as Making Disruptive Statements). In one such case, an appellant’s conditional threat that he would cut off his supervisor’s head warranted his removal despite a lack of prior discipline and four years of service. The agency successfully argued that such behavior affected the agency’s obligation to maintain a safe work place for its employees, thus impinging upon the efficiency of the service. Robinson v. USPS, 30 MSPR 678 (1986), aff’d., 809 F.2d 792 (Fed. Cir. 1986) (Table). A note to practitioners: If you’re going to charge Threat, you’re going to need to be sure you have evidence to support the Metz factors. Come to FELTG’s Workplace Investigations Week in Denver August 24-28 if you’d like to learn more about that.

Multiple specifications are aggravating 

Sometimes an employee engages in an act of misconduct several times, but has no disciplinary record because the agency hasn’t yet issued discipline (which, as a side note, contradicts my colleague Bill Wiley’s mantra “Discipline early, discipline often”). In those cases, the agency may choose to discipline the employee, and show the egregiousness of the conduct by listing multiple specifications, thereby justifying the penalty of a removal for a first offense of misconduct. A fairly recent case provides a perfect example of such a strategy: A first-offense removal was upheld because there were 10 specifications of continued sexual misconduct that occurred after appellant was asked to stop his inappropriate behavior. Adkins v. DoD, SF-0752-16-0294-I-1 (2016)(NP).

Harm or potential for serious harm

The Air Force has a rule: A Division 1.3 explosive must be attended at all times by its driver or a qualified representative of the motor carrier that operates it. One of our most-discussed-in-class cases at FELTG seminars involves a WG-09 Motor Vehicle Operator with 28 years of outstanding service, who left a truck with an intercontinental ballistic missile unguarded in a motel parking lot (keys in the ignition, doors unlocked) for 45 minutes, and then lied about to his supervisors when they confronted him. Though 28 years of service is a mitigating factor, and a discipline-free record is generally an asset, leaving a missile containing 66,671 pounds of explosive propellant unguarded was egregious enough to warrant a first-offense removal. Dunn v. Air Force, 96 MSPR 166 (May 24, 2004).

Remember, the goal of discipline should be to prevent future misconduct from occurring. But sometimes, employees go over the line and there’s no coming back. As long as your Douglas factors analysis supports removal, and the penalty is not grossly disproportionate to the offense, you’re free to remove an employee with a discipline-free record. For more on discipline, join FELTG for the Virtual Training Institute’s Taking Defensible Disciplinary Actions, June 1-3, or Developing & Defending Discipline, June 23-25 – from wherever you’re working. Hopkins@FELTG.com

FELTG is Going Virtual – for the Summer, Anyway

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By Deborah J. Hopkins, May 14, 2020

These past several weeks have been challenging for all of us. Many of you in the FELTG Nation, and some of us in the FELTG family, have lost loved ones to COVID-19. There’s a lot of uncertainty about what the future holds, as some states begin to re-open while others remain on lockdown. Will things ever return to some semblance of normal? And if so, when?

We don’t have answers to those difficult questions, but we’ve been working hard to adapt as developments have changed almost daily. So out of an abundance of caution – and to allow you time to plan and prepare for the training you still need – we’ll be holding our open enrollment classes virtually through August. Since a number of your agencies aren’t allowing travel until who knows when, we want to make sure you have an opportunity to attend the full spectrum of live, instructor-led FELTG classes.

Here’s the breakdown:

Virtual Training

From half-day spotlight sessions to week-long seminars, and everything in between, the FELTG Virtual Training Institute has classes on topics including reasonable accommodation, performance, discipline and misconduct, leadership, dealing with union issues, leave abuse, understanding employees with PTSD, conducting harassment investigations, and more. Check out the upcoming schedule, which includes favorites such as Advanced Employee Relations, Developing and Defending Discipline, EEOC Law Week, Absence, Leave Abuse & Medical Issues Week, FLRA Law Week, and more.

Webinars

Some of FELTG’s most popular webinar series – including supervisory tools, EEO refresher training and Reasonable Accommodation in the Federal Workplace – are open for registration now. Plus, we have group discounts for employees who are teleworking due to the pandemic.

Onsite Training

When it comes to onsite training, we can bring you any of our classes virtually – or we’ll be happy to have an instructor come to you, if your agency has the space to provide enough social distance for the students and the instructors to gather while following CDC guidelines.

SPECIAL EVENT: FELTG Forum

Federal Workplace 2020: Accountability, Challenges, and Trends

The pandemic is making the possibility of attending summer federal conferences less likely each day. That’s why we’re launching the virtual training event Federal Workplace 2020: Accountability, Challenges, and Trends with 14 different live instructor-led sessions, July 27-31. You can attend as many sessions as you want, from one to all, or anything in between. Earn 8 EEO refresher hours. Earn CLE and Ethics credits. Learn the latest about how to handle the challenges facing federal agencies in 2020.

Because this is a virtual forum, you can attend from wherever you’re working – home or agency office, with no need to get on a plane. Check out the agenda below.

See below for the upcoming schedule of events, or visit www.feltg.com/events to see all the options on the calendar, by date.

We’ll continue to adjust our plans and approach as necessary, until this disease is under control, until it’s eradicated, or until there’s a vaccine. In the meantime, we hope you and your loved ones stay safe and healthy.

Take care,

Deb

Deborah J. Hopkins, FELTG President

Once Again, EEOC Discusses the Role of Agency Defense Counsel – But This Time, No Sanctions Involved

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By Deborah Hopkins, May 5, 2020

One of the most intensely debated topics in the EEO realm for years, has been the proper role of agency defense counsel in agency EEO investigations. Indeed, we’ve written articles in this newsletter about the topic. One of the more recent, hotly discussed cases was the July 2018 issuance of Josefina L. v. SSA, EEOC Appeal No. 0120161760. In this case, the Commission determined “… that Agency counsel impermissibly interfered with the investigation … We determine that OGC’s actions undermined the integrity of the EEO process by eroding the necessary separation of the investigative process from the Agency’s defensive functions.”

Despite all the discussion about Josefina L., we didn’t really learn anything new or significant from the case. The Commission has previously held that an agency representative “should not have a role in shaping the testimony of the witnesses or the evidence gathered by the EEO Investigator.” See Tammy S. v. Dep’t of Defense, EEOC Appeal No. 0120084008 (June 6, 2014), recon. denied, EEOC Request No. 0520140438 (June 4, 2015). Josefina L. brought the debate to the front burner, yet again, and the SSA was slapped with a mild sanction, despite EEOC’s chiding in the case.

One of the problems we’ve had with understanding the EEOC’s position over the years is the weak sanctions they’ve issued when they found agency defense counsel to have crossed the line. Time and again, they issued decisions where the words seemed to say “I’m really mad,” and the actions seemed to say “But I’m not really that mad.”

Interference in the EEO process is one thing – and it’s a problem. But there is no law or regulation that specifically prohibits every single agency attorney from providing advice to supervisors during EEO proceedings, so long as the involvement does not impact the “impartial processing” of the case. Management Directive 110, Chapter 1, Section IV.

So where is the line between permissible and impermissible involvement? Practitioners for years have begged the Commission: PLEASE let us know, definitively, where the bright line can be located.

While the EEOC still hasn’t given us a bright line, the answer to the level of involvement permissible recently got a little bit closer to definitive in a recent case:

[W]e expressly hold that MD-110 permits agency defense counsel to participate in the pre-complaint and investigative stages under clearly defined and controlled conditions that will carry out the Agency Head’s obligation to defend the Agency against legal challenges while avoiding inappropriate interference with the activities of the EEO Office. This means that agency defense counsel may assist agency management officials and witnesses in the preparation of their affidavits during the investigative stage. However, agency defense counsel may not instruct officials to make statements that are untrue or make changes to any affidavit without the affiant’s approval of such changes. [bold added]

Annalee D. v. GSA, EEOC Request No. 2019000778; App. No. 0120170991 (November 27, 2019).

This is yuuuuuuuge. For the past several years, the Commission has sanctioned agencies whose counsel were involved in almost any way. You’d find the occasional case that went the other way, but again the problem was no bright line. Sometimes interference was okay, as long as it wasn’t too much interference; other times, it wasn’t okay.

In the Annalee D. case, the EEOC had originally sanctioned the agency simply because the agency defense counsel was involved – without ever looking at the merits of the involvement. But to its credit, EEOC reversed itself, after the agency requested reconsideration: “In the underlying appellate decision, we found impermissible interference solely on the grounds that agency defense counsel provided assistance to management officials during the investigative stage and not because the provided assistance actually interfered with the EEO Office’s investigative process.”

Look at some of the other language form this case:

  • “Our decision in [Annalee D.] appears to set forth an absolute rule that prohibits agency defense counsel from participating in the pre-hearing stages of equal employment opportunity matters…There is no ‘bright line’ regarding the extent to which agency defense counsel may be involved during the pre-hearing stages of the EEO process. Rather, the issue of utmost concern to the Commission is whether the actions of agency defense counsel improperly interfered with or negatively influenced the EEO process.”
  • “[N]othing contained in MD-110 explicitly prohibits agency defense counsel from representing an agency manager during the counseling stage or bans agency defense counsel during the investigative stage from assisting an agency manager in preparing his or her affidavit or acting as a representative under the appropriate circumstances.”
  • “In recognizing the disparate yet vital responsibilities of the EEO Office and agency defense counsel, MD-110 recognizes that these entities will inevitably interact with each other. MD-110 sets out the parameters for these interactions and seeks to ensure that neither entity inappropriately interferes with the functions of the other.”

This is the best guidance we’ve seen from the Commission on the topic to date – well, it’s good if you’re on the agency side, anyway. And it clarifies the extent to which an agency can support a supervisor who has been accused of discrimination, and needs help understanding the process. Come to our virtual training class Conducting Effective Harassment Investigations May 18-20, or to EEOC Law Week in Washington, DC, in August (if the country is open by then) or September if you want to learn more about this topic, plus a whole lot more. Hopkins@FELTG.com

How Do You Address Performance Failures During Emergency Telework?

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By Deborah Hopkins, April 15, 2020

Today as you read this, over a million federal employees are teleworking because of the COVID-19 emergency. Under OPM regulations, during an emergency an agency may assign any work considered necessary without regard to the employee’s grade or title, including assignments that an employee is given while teleworking.

We’ve seen this happen in recent weeks as agencies have issued evacuation orders and sent employees home on telework, even if the employees haven’t previously been cleared to work from home. In fact, a number of federal employees are currently at home, getting paid with nothing to do because they don’t have a computer and, therefore, have no way to telework – but they’re stuck at home because it’s not safe to come to work in virus-stricken areas. If one thing is sure, it’s an unprecedented time in the federal government, the country, and the world.

So, back to that OPM stuff. An agency can assign work the employee doesn’t normally do, but only if the agency knows the employee has the necessary knowledge and skills to perform the assigned work. Let’s use me as an example. I’m an attorney. Maybe while I’m working from home you assign me to attend virtual training classes, or to proofread some documents. That’s just fine. But you can’t assign me to do peer review on a scientist’s research, because I have no clue how to do that.

The assignment of alternative performance requirements raises an important question, though: How can an agency hold an employee accountable for performance while they are on emergency telework, if the performance failure is not covered by a critical element in the employee’s performance plan?

Since the Civil Service Reform Act was implemented in 1979, the law and regulations have set out clear requirements on how federal employees should be held accountable for poor performance. And if you look at 5 CFR 432, you’ll see that an agency can’t take a performance-based action unless the employee performs unacceptably in a critical element, after being given an opportunity to demonstrate acceptable performance.

So what’s an agency to do if it assigns a performance-related task to an employee who is on emergency telework for COVID-19, and the employee doesn’t complete the task, or performs the task poorly? In other words, using me as your hypothetical employee, what can you do if I don’t attend the virtual training or don’t review the documents, if I don’t have a critical element related to either of those things?

Does the agency have to accept poor, or even no, work performance? I think not.

The agency can’t hold an employee accountable under the performance procedures if the assignment doesn’t fit into a critical element, so the agency is now left with the option to take a 5 CFR 752 action, also known as an adverse action, against the employee. This rarely-used option has been permissible under the law for 40 years.

That said, there are a few drawbacks to handling a “performance” problem as an adverse action:

    • The burden of proof is higher (preponderance of the evidence) to take a misconduct-based action, than it is to take a performance-based action (substantial evidence). The exception is the employees covered under the new VA law, where the burden of proof is substantial for misconduct and performance actions.
    • If the failure to perform doesn’t cause significant harm, the agency may need to issue multiple disciplinary actions via progressive discipline, before it can remove the employee for the failures.
    • The agency would be required to justify its penalty in any discipline it issued beyond a reprimand.

So here’s what this situation would look like, if I’m your hypothetical employee:

You: Deb, I’m registering you to attend the three-day FELTG virtual training April 21-23, so you can earn your CLE credits and learn about legal updates while you’re teleworking. You need to attend all sessions.

Deb: Is properly registered for the sessions but doesn’t attend because she is binge-watching Veep.

You: [It’s April 24] Deb, here’s your reprimand for failure to follow supervisory instructions. Now, I need you to review this document, edit it, and have it returned to me by 3:00 p.m. on April 28.

Deb: [It’s April 29] Sorry, I didn’t get a chance to review that document yet. I’ve been busy on other things.

You: Deb, here’s your proposed 3-day suspension (or reprimand in lieu of suspension, if you prefer) for failure to follow supervisory instructions.

Does this make sense? The law doesn’t require an agency to pay an employee to sit at home and do nothing during a pandemic, if there’s work the agency can assign the employee. But if the work doesn’t relate to a critical element, the agency must use the misconduct procedures to hold the employee accountable. Interesting times, aren’t they? Hopkins@FELTG.com

Due Process Challenges in a COVID-19 World

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By Deborah Hopkins, April 7, 2020

When it comes to due process in federal sector employment law, the steps are as easy as 1-2-3. Let’s take a hypothetical where the employee has violated agency purchase card restrictions, and the agency is ready to propose his removal. Here are the three steps that provide Constitutional due process to the employee – mandatory steps if he is a career Title 5 or Title 42 employee and no longer a probationer:

  1. The agency provides the employee with a proposal notice containing the proposed action (removal), the charge (misuse of an agency purchase card), the penalty justification (Douglas factors worksheet), and boilerplate rights, plus any materials relied upon.
  2. The employee is given a minimum of seven days to respond orally or in writing, and to be represented.
  3. The Deciding Official issues an impartial decision based only on the information in the proposal, and the employee’s response.

This is all fairly straightforward, though by no means do all agencies do it perfectly. But now that we are living in a COVID-19 world, there are some new questions that agencies are facing as it relates to providing due process. Let’s take a look.

The employee is working from home and we usually hand-deliver proposal notices, but the employee is on telework. What are our options?

In this case you have two options:

    • You can hand-deliver the proposal to the employee at his home. This is currently not advised, as many of us are under social distancing and stay-at home orders. I suppose if you were pulled over by the police on your way to the employee’s house you’d have a pretty good argument that this delivery is mission-essential.

Here is the better option:

    • Mail the letter to the employee, email it to the employee, or both. When an employee is teleworking, there’s a presumption of receipt of an email sent by a supervisor. What’s more, the folks in IT can check and see exactly when the employee opened the email. And if you think emailing proposed discipline is frowned upon by MSPB, then check out Korb v. MSPB, MB-1221-14-0002-W-1 (March 2, 2016) (ID), where an MSPB supervisor emailed a proposed adverse action to an employee. You can also send the letter via U.S. mail, where there is a presumption of receipt after 5 days.

Watch the timelines here, because the clock on the notice and response period starts on the day the employee receives the notice. If you only use the mail, you’ll be waiting a few extra days to start the notice period.

The employee needs access to files at the agency in order to prepare his response, and the building is closed because of COVID-19. Do we have to wait until the building re-opens to issue the proposal?

No, you do not need to delay your action. At this point in the process, the employee is not entitled to any agency files to prepare his response – unless your union contract says otherwise. Once the removal is issued and the employee files an appeal, he can request relevant files through discovery and the agency must produce the information. At the proposal stage, however, there is no entitlement. Don’t take my word for it; check out Kinsey v. USPS, 12 MSPR 503 (1982), a foundational Board case that settled this question in the early days of the Civil Service Reform Act.

The employee has requested an in-person response but the Deciding Official is teleworking and does not want to risk being exposed to the virus. Does the agency have to grant the onsite response meeting?

Again, the answer is no. The employee is entitled to an oral response, not a face-to-face response. Telephone or video conferencing are routinely used for the oral response, even when a pandemic is not consuming the globe. As long as the deciding official is able to hear the employee’s response, the legal requirement in 5 USC § 7503 has been met.

The Deciding Official receives an email from the employee’s former supervisor, encouraging the DO to remove the employee. Must the Deciding Official tell the employee about this email?

If the DO considers the information in the email at all in making her decision, then the employee is entitled to notice of this information, commonly known as a Ward letter. The agency would then need to give the employee the statutory minimum of seven days to respond to the email before the DO could implement her decision.

If the DO does not notify the employee of this new information, and the employee or judge finds out, the agency will automatically lose the case on a due process procedural violation – even if the agency has 50 witnesses, a public confession, and a video recording of the entire act of misconduct. Regardless of the evidence, due process violations are losers for the agency every single time.

In fact, most agencies lose cases because of due process violations, rather than on evidence. It’s a tricky area so for that reason, we invite you to join us next week on April 16 for a 60-minute webinar Due Process Violations: How One Mistake Could Cost You the Case. Until then, be safe and take care. Hopkins@FELTG.com

Do You Believe These Myths About Leave?

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By Deborah Hopkins, March 19, 2020

If you are part of the FELTG Nation, you probably already know that federal employees have significant rights to various types of leave. In fact, starting this fall, most will receive even more leave entitlements, in the form of paid family leave. That said, leave is not always an entitlement. Today I want to discuss some of the myths surrounding federal employee leave.

Myth: Employees always have the right to dictate their leave status if they have leave on the books.

Here’s the scenario: Your employee doesn’t come in to work one day when she’s scheduled, and doesn’t request leave or otherwise notify the supervisor she won’t be in. The next day, she comes in and tells the supervisor to put her on annual leave for yesterday. She has 32 hours of annual leave on the books. Must the supervisor grant the annual leave?

No. Annual leave is not an entitlement, and the supervisor may deny the request so long as the denial is reasonable. Is it reasonable to deny a leave request after the fact, when there is no entitlement, and the employee did not follow proper leave procedures? You bet. The employee who doesn’t come to work when scheduled is not on approved annual leave, she is AWOL.

In addition, there’s also a potential second disciplinary charge for failing to follow leave procedures. If you need good aggravating language, look no further than Yartzoff v. EPA, 38 MSPR 403 (1988). This case discusses how an agency is “doubly burdened” by an unscheduled absence; once for the loss of the employee’s services, and again for the loss of the opportunity to plan for the absence.

We’ve said it before, and we’ll say it again: Federal employees do not have the legal right to place themselves on leave. There is a three-step procedure that must be followed according to the law regardless of the type of leave requested, and if you’re not doing things this way, you are needlessly making your life more difficult.

  1. Employee submits a leave request according to agency procedures
  2. Supervisor considers the request
  3. Supervisor either grants or denies the request.
    • Sometimes the supervisor must grant the leave; other times it’s discretionary.

That’s the law.

Myth: If an employee is at work, she can’t be charged AWOL.

I think we all know that just because someone is at work, doesn’t mean she is actually working. Since the beginning of time – or at least since the beginning of the Civil Service Reform Act – employees who are on the clock but not doing government-related-work can be charged AWOL, or unauthorized absence if that’s what your agency calls it. A few cases to get you started:

  • An agency may charge an employee with AWOL for conducting personal business while on duty. Mitchell v. DoD, 22 MSPR 271 (1984)
  • Sleeping on the job; wasting time. Golden v. USPS, 60 MSPR 268, 273 (1994)
  • If an employee is insubordinate and is told to leave the work site until he agrees to follow directives, he is not on approved leave; he is AWOL. Lewis v. Bureau of Engraving and Printing, 29 MSPR 447 (1985).

Myth: An employee may only use sick leave if he, or a close family member, is incapacitated for duty.

Not long ago, I had a federal employee in my class whose sister had recently died. The employee requested sick leave to attend the funeral, and her supervisor denied the leave request. Well, that denial was absolutely wrong.

Under 5 CFR § 630.401(a)(4), an employee is entitled to use up to 104 hours (13 days) of sick leave each leave year for family care and bereavement, which includes making funeral arrangements or attending the funeral of a family member. The definition of family member in these instances covers a wide range including spouse; parents; parents-in-law; children; brothers; sisters; grandparents; grandchildren; step parents; step children; foster parents; foster children; guardianship relationships; same sex and opposite sex domestic partners; and spouses or domestic partners of the aforementioned, as applicable. Check out OPM’s full list of Definitions Related to Family Member and Immediate Relative for Leave Purposes.

The supervisor in this case could have legally denied the sick leave request only if the relative did not meet the definition of family member, if the employee had already used 104 hours of sick leave on family-related care that leave year, or if the employee did not have accrued sick leave. Otherwise, the leave was an entitlement and should have been granted.

There are also a few other areas where an employee may not be sick but has an entitlement to sick leave (e.g., routine dentist appointment), so you’ll want to be sure to read the regs if you’re not familiar with those.

Myth: The agency may dictate the employee’s pay status during FMLA.

A lot of supervisors miss this one, but the employee who is on FMLA gets to decide if the time off will be recorded as sick leave, annual leave, LWOP, or any combination of the three. Yes, that means an employee can
use LWOP during FMLA and keep all his annual leave and sick leave during FMLA, and save it for a rainy day. The agency has no choice in the matter, so don’t even try to force an employee to use accrued leave. The law is on the employee’s side.

If you like these leave topics, we have an entire training week on Absence, Leave Abuse and Medical Issues in Washington, DC, starting March 30 – or if you’d prefer to wait a few months to travel, September registration is also open. If you find this information helpful, you’re welcome to join us. We’d love to see you there.  Hopkins@FELTG.com

More on Probationers: FELTG Answers Your Follow-Up Questions

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By Deborah Hopkins, March 19, 2020

In a recent newsletter, I discussed the differences between initial appointment probationary periods and supervisory probationary periods. As a result of this discussion, FELTG received some follow-up questions, including requests for explanation of more complicated scenarios involving probationary periods. So here goes.

What happens if the agency wants to remove a probationary employee for pre-employment reasons?

If a probationer in the competitive service is removed for reasons occurring after they begin work, such as a performance or conduct issue, they have no MSPB appeal rights and no right to due process, with limited exceptions. However, if a probationer is being removed for a condition that arose before they started their job at a federal agency (for example, they lied on their job application), then they are entitled to a three-step procedure that mimics due process and if this process is not followed they can appeal to MSPB that the procedural requirements were not met:

  1. Notice for the reasons why the agency is proposing the action;
  2. A reasonable amount of time to file a written response; and
  3. A written decision at the earliest practicable date, with notice of a right to appeal to MSPB.

See 5 CFR § 315.805.

Note: This three-step process does not follow the same 30-day notice timeline as a proposed removal actions for a fully vested career employee. These procedures are generally abbreviated by agency policy to be a few days at most.

Does a reinstated employee have to serve a new probationary period?

When an agency appoints an individual using reinstatement authority, the individual does not have to serve a probationary period if during any prior service that forms the basis for the reinstatement, the individual successfully completed probation. 5 CFR 315.401, 801(a); Aviles-Wynkoop v. DoD, DC-315H-16-0327-I-1 (2016)(NP).

How are temporary appointments related to probationary status?

For many years, individuals employed in a series of temporary appointments accrued MSPB appeal rights even with a few days break in service between appointments. The reason for this was the theory of a Continuous Employment Contract. See Roden v. TVA, 25 MSPR 363 (1984).

A few years ago, though, MSPB changed its stance and said in order to gain MSPB appeal rights, temporary employees must have more than a year of continuous, uninterrupted employment with no break in service – not even a day or two. Winns v. USPS, 2017 MSPB 1. See also Bough v. DoI, Fed. Cir. 2018-1477, 1478 (April 5, 2019). This “current, continuous standard” for temporary employees allows them to count their work toward completion of probation when the prior service:

  • Is in the same agency,
  • Is in the same line of work (determined by the employee’s actual duties and responsibilities); and is
  • Continuous (without a service break).

5 CFR 315.802(b)

In the excepted service, prior intervals of permanent service that are separated at the time of removal by a period of temporary service do not count toward the two-year requirement, even if there is no break in service when one considers both temporary and permanent positions. Roy v. MSPB and DoJ, 672 F.3d 1378 (Fed. Cir. 2012) (employee who had 8 years permanent employment and 1.5 years permanent employment separated by an 18-month temporary appointment did not have MSPB appeal rights).

What if an employee voluntarily accepts a job with a probationary period?

There are some positions in the federal government that may require a probationary or trial period regardless of the employee’s employment history with the government. Employees have appeal rights, regardless of whether they are serving a probationary/trial period, if they have:

  • Current continuous employment (as defined above) of:
    • One year in the competitive service (excluding service in temporary positions with a duration of two years or less), or
    • Two years in the excepted service, and
    • For veterans: one year in either service.

Van Wersch v. HHS, 197 F.3d 1144 (Fed. Cir. 1999), Claiborne v. VA, 2012 MSPB 101 (August 30, 2012). 

This means that an employee in the competitive service who has completed a year of current, continuous service (not a temporary appointment) has full procedural and appeal rights even if that individual is serving a probationary period. 5 USC 7511(a)(1)(A). If the individual is in the excepted service then the full appeal rights vest after two years even if that individual is serving a probationary period. 5 USC 7511(a)(1)(C). A person eligible for veterans preference will receive full procedural and appeal rights after one year of “current continuous service in the same or similar positions” whether the veteran is in the competitive or excepted service. 5 USC 7511(a)(1)(B).

In summary, employees have two separate and distinct avenues to appeal rights:

  • Employees who have completed a probationary period have appeal rights.
  • Employees who have a year of current service prior to the termination have appeal rights.

A special note for DOD, the probationary period is two years instead of just one, so some of your timelines may have to be modified accordingly. Hopkins@FELTG.com