Let’s Address the Misconceptions About Poor Performance

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By Deborah Hopkins, November 14, 2018

If there’s one thing that bothers federal employees more than anything, it’s slackers in the workplace. And if there’s something even worse than that, it’s the supervisors who refuse to deal with slackers in the workplace. I’m not making it up. Last month, OPM released a Federal Employee Viewpoint Survey that showed around 70% of federal employees do not believe that supervisors take the steps necessary to deal with poor performers. This isn’t breaking news; some version of this concept remains one of the highest negative ratings measured each year.

In the federal government, only about 5% of the 10,000-plus removals annually are for poor performance; the rest are for misconduct. But did you know that it’s almost always easier to remove a poor performer than it is to remove an employee who engages in misconduct?

But Deb, my HR office told me performance removals are really hard. They said I need months of performance tracking, then loads of evidence to start a PIP. Pus at my agency, we do 90-day PIPs, during which I have to double-check everything the employee does. Plus I have to give the employee a chance to get better every week. After all that, I need tons of evidence of all the failures during the PIP before I can even propose removal. I don’t have that kind of time.

Well, if all that were true I wouldn’t have that kind of time either. But that entire statement is full of myths. Ready for me to make your day? Read on.

Performance-based actions DO NOT require months of performance tracking. In fact, as long as the employee has been on her performance plan for around 60 days (known as a warm-up period), you can put her on a PIP (Performance Improvement Plan) after only one or two instances of unacceptable performance on any critical element. You do not need a pattern of unacceptable performance, or a minimum number of mistakes. Read the performance plan and look at the standards for “Unacceptable” on each critical element. Depending on how the plan is written, one instance of unacceptable performance may be enough to trigger the PIP.

Here’s an example:

Critical Element 1: Answers the telephone

  • Performance Standards

Acceptable: Answers within three or fewer rings

Unacceptable: Answers after more than three rings

As soon as that employee answers the phone after 5 rings, you can PIP her. Boom.

Putting someone on a PIP does NOT require tons of evidence. Did you know the amount of proof you need to put someone on a PIP is so low that there’s not even a name for it? At FELTG, we call it an articulation of the reason. So what does an articulation look like? “The employee answered the phone after five rings and the acceptable level is three rings or fewer.” That’s it. As a defensive strategy, we recommend making a note to yourself that day with what you observed, just in case down the road the employee challenges you on why you put her on the PIP; that contemporaneous documentation will be a helpful memory jogger and a solid piece of evidence for the judge or arbitrator to consider in addition to your testimony. Update: As of March 11, 2021, the agency is now required to show substantial evidence of unacceptable performance in order to justify the PIP – more than an articulation.

During the PIP you do NOT have to baby-sit your employee. The regulation requires you to “offer assistance” to the employee during the PIP. 5 CFR 432.104. Assistance is not doing the work for the employee, assigning a mentor, lowering the standard, or double-checking everything the employee does. We know from the case law that offering assistance means providing feedback to the employee during the course of the PIP. At FELTG, we recommend our legal clients meet once a week with the employee during the PIP, but the MSPB has found that even just one or two meetings during the course of a PIP meets the regulatory assistance requirement.

You do NOT have to give the employee a chance to improve during the PIP.  The name “Performance Improvement Plan” is really a misnomer that has caused all kind of confusion. Back in the early ’80s, OPM created the acronym “PIP” (first, Performance Improvement Period, then Performance Improvement Plan) in reference to the period mandated by law for a demonstration of acceptable performance prior to removal. It takes much less time for an employee to demonstrate whether he can do his job than to see if he can improve in doing his job.

President Trump’s Executive Order, referenced above, clarifies what the law says by dropping the concept of an “improvement” period for poor performers and instead uses the legally correct term “demonstration” period. So while most agencies still call it a PIP, the more correct terminology would be Opportunity Period (OP), Demonstration Period (DP), or what our friends at HHS are calling the Opportunity to Demonstrate Acceptable Performance (ODAP).

The PIP does NOT have to be 90 days. FELTG recommends a 30-day PIP regardless of the employee’s job type or GS level. Never, ever, ever in the history of the MSPB, even when former union attorneys were running the place, has the Board found a 30-day PIP to be too short. Towne v. Air Force, 2013 MSPB 81. If that’s not enough for you, take a look at the President’s May 25 Executive Order 13839, which says the performance demonstration period should “generally” be no more than 30 days. Why “generally”? Well, if your union contract requires 90 days, then you’re stuck with 90.

However, it’s perfectly legal to end a PIP early due to the error rate. See Luscri v. Army, 39 MSPR 482 (1989). For example, your employee is a security screener and the PIP says he cannot let any guns get onto an airplane, and on day 5 he lets a gun get onto an airplane. You can end the PIP there. Why on earth would you allow him 25 more days to let MORE guns onto planes? Which leads me to my next point.

Removal for failing a PIP does NOT require a high level of evidence. In fact, it requires less evidence than a misconduct removal. In performance, the level of evidence is called substantial. Substantial evidence is that which a reasonable person might accept [not would accept] to support a conclusion relevant in an unacceptable performance action – even though others may disagree. 5 CFR 1201.56(c)(1). So if you think the employee answered the phone on the fifth ring, that’s enough. You don’t need three witnesses, a customer complaint, and video evidence showing what she did. How about a squishy critical element like “Professional Conduct” that isn’t quantifiable? If you think the person’s performance is unacceptable as applied to the standard, even if another person might disagree with you, that’s enough.

Contrary to what you might hear or read, I actually don’t think the civil service system is broken and inefficient; it’s just being used improperly. Streamline the process and you, too, can get a poor performer out of the workplace in 31 days. We’ve done it hundreds of times in the last 40 years and would be happy to show you how. Your other employees will thank you, and America will thank you too. Hopkins@FELTG.com

What a Chicken Sacrifice Teaches Us About Religious Accommodation

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By Deborah Hopkins, November 14, 2018

Let’s say your agency is working on a remote project somewhere and there’s a cargo plane that comes every two weeks to drop off supplies.

One of your employees asks you if the agency will allow a family member to bring a chicken to the airport at the point of origination, so the chicken can be flown, along with the rest of the cargo, on the next plane in. When you ask why, the employee tells you that she has a religious belief that requires a chicken sacrifice every fourth Friday, that her work on the remote project will still be in progress during the next required sacrifice, and she has no access to chickens in this remote place.

What do you do?

Hopefully, before you say anything about how strange you might think that is, or before you laugh the request off, you realize that this a request for religious accommodation and that the employee may be entitled to her request.

Here’s what we know from the law. Title VII requires federal agencies to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden (undue hardship) on the agency’s operations. This means an agency may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.

Religion is broadly defined and includes all aspects of religious observance and practice, as well as beliefs – and not just the major world religions we might think of. According to 29 CFR§1605.1, a religion does not have to be practiced by an organized group and includes moral and ethical beliefs as to what is right and wrong that are sincerely held with strength of traditional religious views. It also includes beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that “seem illogical or unreasonable to others.” EEOC Compliance Manual, Section 12-I, A-1.

The employee requesting religious accommodation has to do the following:

  1. Demonstrate she has a bona fide religious belief or practice that conflicts with work requirement
    • “Every fourth Friday I am required to make a chicken sacrifice, and I am scheduled to be working on this remote project next Friday, and no chickens are around for me to sacrifice.”
  2. Inform the agency of conflict
    • The employee told the supervisor, and asked for a chicken to be allowed on the plane.
  3. Show that the work requirement would force complainant to abandon fundamental aspect of belief or practice.
    • “These chicken sacrifices are a fundamental believe of my religion and if I don’t make this sacrifice I will be out of good standing with my faith.”

Now it’s on the agency to accommodate the request unless doing so would cause an undue hardship. The term undue hardship is not defined the same way in religious accommodation cases as it is in disability accommodation cases. When it comes to undue hardship in religion, we are looking at anything more than a de minimis burden.

The EEOC Compliance Manual § 12-I, C-6, gives us more detail:

To prove undue hardship, the employer will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve. An employer cannot rely on potential or hypothetical hardship when faced with a religious obligation that conflicts with scheduled work, but rather should rely on objective information … [A]n employer never has to accommodate expression of a religious belief in the workplace where such an accommodation could potentially constitute harassment of co-workers, because that would pose an undue hardship for the employer.” (emphasis added).

So let’s look at the request for the chicken to fly in on the cargo plane. Is it more than a de minimis burden for the chicken to ride in with the rest of the supplies, so the employee can perform her religious ritual on the day it’s required? Take another look at the undue hardship determination and then decide that for yourself. After all, this newsletter is a place for training information, not legal advice.  Hopkins@FELTG.com

The Danger of a Bad Investigation

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By Deborah Hopkins, October 19, 2018

Have you ever conducted an administrative investigation? Depending on the allegations at issue, even if you haven’t yet, you might one day find yourself in a Sherlock Holmes hat and cape, tasked with discovering the truth.

You have the best chance of doing so if your job title is any of the following:

  • HR specialist
  • Law enforcement officer
  • Attorneys
  • Contract investigator
  • EEO specialist
  • IG or professional responsibility staff
  • Line manager

The characteristics of a legally sufficient investigation are that the investigation be prompt and objective; that all relevant witnesses be interviewed, particularly when credibility is at issue; that all relevant documents are reviewed; that the investigator follows up as information is collected; and that a fair analysis of the facts is given. California Labor & Employment Law Review, Vol. 28, No. 6, pp. 1-7.

Objectivity is really key here; if the investigator shows any bias, it undermines the entire investigation. One of the worst things that can happen to both an agency and an employee, is for an investigator to conduct a bad investigation. Whether it’s a misconduct investigation, an EEO investigation, a reprisal investigation, or another type, the results can cost the agency anything from a minor sanction to a sizeable settlement to default judgment – and it can cost the employee years of waiting for a final answer.

One of the lead cases we discuss in our Workplace Investigations Week training (next held in Washington, DC, November 5-9) is Whitmore v. Labor, 680 F.3d 1353 (Fed. Cir. 2012). In this case, the employee was fired. The agency said it was for misconduct. Mr. Whitmore alleged it was in reprisal for his protected whistleblowing.  The Department of Labor brought in an investigator who from the start showed extreme bias against the appellant. You should read the case for yourself (or come to our class) if you want the details, but among the highlights – er, lowlights – the investigator refused to interview any of the appellant’s witnesses, and also sent an email to a DOL official saying he would help the agency “kick [the whistleblower’s] ass this time.” It was such a bad investigation the agency ended up settling the case for $820,000 rather than go to a rehearing. Ouch.

In the discrimination world, EEOC has seen a number of bad investigations. Recently, in a complaint of disability and reprisal discrimination, the EEO investigator doing the investigation did not interview any of the witnesses identified by the complainant, which the Commission noted unfairly restricted the complainant’s ability to prove discrimination (ya think?). The Commission also said it would not have been unduly burdensome for the investigator to talk to those six witnesses (again, ya think?). There was no investigation into the complainant’s statement that he was not allowed to take annual leave in lieu of sick leave for his disability-related issues. This, said the Commission, was articulation of a denial of a reasonable accommodation that the investigator should have addressed, but did not. This case got remanded to the agency for a supplemental investigation.  Julius P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120162827 (Mar. 6, 2018).

The complainant’s first contact with an EEO counselor was on March 2, 2015, and the new investigator is presumably only talking to his witnesses and investigating the denial of reasonable accommodation allegations now, coming up on four years after the fact. It’s unfortunate to all parties involved that years later, this matter in Julius P. is still not resolved, and all because of a bad investigation. Need more? Come to the classes. We’re here to help. Hopkins@FELTG.com

 

FELTG Training is not Like Law School

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By Deborah Hopkins, October 19, 2018

If you’re like me, you don’t have the fondest memories of law school. Sure, there were classes I enjoyed and professors who challenged me (in a good way), but there were a lot of things I didn’t enjoy. I think I started my countdown to graduation before first-year orientation was complete. Among the worst memories are those times I was called on, required to stand up in front of 60 classmates, and grilled about the minute details of the assigned class reading as sweat rolled down my back and I internally prayed for a fire drill or power outage.

Those days are behind me. I still spend most of my time in a classroom, but I now have the privilege of being in the front of the room. I still have to answer questions and some of them are stumpers, but all in all I absolutely love teaching classes on employment law for FELTG and haven’t once had a nightmare about anything that has happened during one of our programs.

Participants often give feedback about our trainings and many times the feedback directly correlates to how FELTG training is nothing like law school. Here are a few of the recent areas that students have commented on.

FELTG doesn’t use the Socratic method. That’s right, we don’t. All of our instructors know the horror of the being put on the spot, so we will never do that to you in any of our classes. We will ask questions and see if anyone would like to answer because we love in-class discussions, but we won’t ever force you to stand up and talk about what you know – or reveal to the class that you don’t know anything because it’s your first week on the job. Rest assured that when you come to our classes, you don’t have to say a word all week, if you don’t want to.

FELTG’s intent is to teach you, not screen you out for failure. We’ve all seen the bad movie that takes place in law school. On day one, the professor uses some version of this speech: “Look to your right and to your left. At the end of this semester, one of the two people next to you  – or maybe it’s you – won’t pass this class and will be kicked out of law school.” Well, at FELTG it is not our goal or desire to kick you out or to have you fail the class. Our goal is to teach you things – law and strategy – that you might not have known, in order to make your job easier and the government run more efficiently. And if you earn CLE or HRCI credits and happen to have fun while doing it, then we consider the class a success.

There is no homework or pre-reading required. Some participants of FELTG programs have been in the business a long time, while others come to training right after starting a career (or career change) in federal employment law or federal supervision. With that understanding, we never give you a reading list or pre-work for any of our seminars. You can show up on day one with zero knowledge, and you will be just as welcome as if you have 20 years of experience litigating before the MSPB or EEOC. One of the most common things our participants say is that they always learn something new from our classes.

We don’t have forced group projects. We won’t do that to you. There are times you have the option to have group discussions or mini-workshops, but if you prefer to work alone, that’s no problem for us. (Exception: Our MSPB and EEOC Hearing Practices Week requires you to work with your litigation team to prepare and deliver a hearing in front of a judge, so you do have to work with others a bit during this class.)

All questions are welcome. There are no stupid questions, and our instructors will assure you that all questions – no matter how silly or basic you think they are – are welcome in our classes. After all, if you’re thinking it, chances are that at least a handful of your other classmates have the same question. So ask away!

There are no final exams. FELTG offers an optional Federal Employment Law Practitioner Certification for a number of our classes but we NEVER require participation, and the testing mechanism takes the form of quizzes rather than exams. The longest quiz takes about 15 minutes to complete, so there’s no reading period required.

We have fun. Yes, it’s true; we have fun during class. We love what we do, and our instructors will make you laugh by telling jokes, or talking about details from wacky cases. The best part of our business is that we never have to make anything up. Any wild scenario you can imagine has happened in some agency, somewhere, over the last 40 years.

Don’t take my word for it; come to a class and check out why FELTG training is different from any other training you’ve ever attended.

We’re now taking registrations for 2019 classes. We hope to see you soon.

Hopkins@FELTG.com

The Leave Mistakes that Supervisors Make

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By Deborah Hopkins, September 19, 2018

Oh, leave. It’s a topic that intersects with everything we do here at FELTG: conduct, performance, EEO, union issues, supervisor skills, and on and on. If you get it right, it’s easy; getting it wrong can cause big problems, legal and otherwise. So what I’ve done for you today is compile some of the more common leave “mistakes” that supervisors and advisors make when dealing with employee leave issues.

But, first things first. Let’s set out a few ground rules. Employee leave entitlements depend on the category of leave involved and can be inconsistent and confusing. Only certain types of leave are an entitlement; others are discretionary. Federal employees have significant rights, but in the discretionary areas (usually annual leave and leave without pay) the supervisor’s judgment about the need for work may be a determining factor on whether the supervisor approves the leave request.

Speaking of leave requests, employees DO NOT place themselves on leave. There is a three-step procedure that MUST be followed according to the law, yet many supervisors don’t enforce it. Ready for it?

  1. Employee requests leave
  2. Supervisor considers request
  3. Supervisor grants or denies request

And that’s it. So, onto the mistakes.

Mistake: Not checking local policy when considering leave requests. While certain areas of leave are discretionary under federal law, agency leave policies may provide more specificity. For example, there is not entitlement to annual leave (even though it is accrued) or LWOP (except for a few circumstances), but your agency’s policy or collective bargaining agreement (CBA) might dictate how those requests should be handled. Always check local policy if you’re not sure. Your L/ER folks or OGC should know those details by heart.

Mistake: Denying leave that’s an entitlement. Some categories of leave are an entitlement IF the employee meets the requirements. This means you have to say yes to a leave request even if it inconveniences the agency to do so. For example, let’s say an employee requests sick leave because his grandmother died, and he has to attend the funeral. That’s an entitlement. The employee gets the sick leave for the reasonable time they need to attend the funeral. Another example: An employee requests 12 weeks (480 hours) of FMLA to have cancer treatment. Even if it’s the end of the fiscal year, your office is crazy busy, and you don’t allow people to take vacations during that quarter, you have to approve the FMLA because it’s an entitlement.

Mistake: Not allowing the employee to choose his 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, or LWOP. That means an employee can use LWOP during FMLA and keep all his annual leave and sick leave and save it for a rainy day. And there’s not a darn thing you can do about it.

Mistake: Putting an employee on LWOP without the employee’s consent. If a supervisor unilaterally places an employee on LWOP, although the employee did not request it, the supervisor has improperly suspended the employee without adverse action procedures. On appeal, the employee would be entitled to back pay for that period of time he was carried on LWOP without his consent. See Martin v. USPS, 2016 MSPB 16. The authorization of LWOP is a matter of administrative discretion and employees may not demand that they be granted LWOP as a matter of right, Desiderio v. Navy, 4 MSPB 171, 4 MSPR 84 (1980), but the supervisor may not place the employee on LWOP status without the employee’s consent.

Mistake: Letting employees abuse the Voluntary Leave Transfer Program (VLTP). Agency VLTPs are generally for short-term medical emergencies, to get an employee through a difficult time. If a supervisor allows VLTP for medical non-emergencies, it denies the benefit to employees who truly need the leave. Be aware, though, that normal maternity situations meet medical emergency criteria. Therefore, pregnant employees will qualify for VLTP even if there is not a medical emergency related to the pregnancy. Once an employee is approved for the VLTP, though, donated leave use is not an entitlement even if it is for medical reasons; it is still  subject to the same approval/disapproval  procedures as is annual leave. See Jones v. DoT, 295 F.3d 1298 (Fed. Cir., 2002).

I have more, but that should do it for today. Go forth and be wise in granting or denying leave requests – and remember, supervisors, in most cases, it’s up to you. Hopkins@FELTG.com

Another Case Involving the Role of Agency Defense Counsel During the EEO Investigation

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By Deborah Hopkins, September 19, 2018

For eons (OK, maybe not eons but it sure feels like it), the EEOC has issued decisions that discuss the importance of conducting impartial investigations. In these decisions, the Commission also shares its view of the role of agency defense counsel during EEO pre-complaint and investigation stages. The Commission has repeatedly held that agency defense counsel should not be involved in assisting supervisors during the pendency of these processes. Yet, the sanctions EEOC issues when agency OGC offices do become involved are so weak that, as Ernie Hadley wrote in this newsletter back in 2014, “it should give pause as to how serious the Commission really is about the issue.”

Just a few weeks ago, the Commission tackled the topic yet again in Josefina L. v. SSA, EEOC Appeal No. 0120161760 (July 10, 2018). In this case, the complainant filed a complaint against her supervisor for harassment and discrimination based on sex and disability, alleging a number of discriminatory events that occurred over a 13-month period. You can read the case yourself if you want to get an idea of her claims, but I’ll give you the punchline: Josefina didn’t like it when her supervisor told her what to do, and she let him know that by using sarcasm and/or by not performing the job duties he told her to. The decision is mostly unremarkable, as the Commission found no discrimination based on the merits.

However, the Commission took time to address how an attorney in the agency’s OGC worked closely with the accused supervisor (in the decision, he is referred to as S1) in developing his affidavit for the EEO investigator:

In the email, Counsel told S1 it was great to have spoken with him that morning and requested that S1 provide a copy of his affidavit for review. In an email dated January 5, 2016, Counsel informed S1 that he was “the attorney assigned to assist” him with his affidavit for his EEO complaint, and he was working on revisions and should have them for S1 within the next few days. Counsel further directed S1 “not to discuss OGC’s involvement in this case with the Investigator in any capacity,” and to inform Counsel immediately if the investigator contacted him for other information. Additionally, in an email dated January 7, 2016 to S1, Counsel asked S1 to review OGC’s proposed changes and comments about his draft affidavit statements. Counsel also directed S1 “not to cc [Counsel] on the correspondence to the investigator, or otherwise share [Counsel’s] involvement in this matter,” and to ensure that all his comments were deleted from the final version of his affidavit responses.

It’s clear from the facts above that the attorney absolutely did not want his assistance to S1 to be known. Not good.

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). So it is not surprising that in Josefina L., the Commission found “…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.” The Commission also noted that this agency was recently sanctioned for similar conduct. See Hortencia R. v. SSA, EEOC Appeal No. 0120150228 (May 3, 2017). Strike two.

The Commission, finding improper interference, imposed sanctions on SSA in Josefina L.: EEO managers and OGC personnel were ordered to undergo training on the proper role of OGC in the EEO process. The Commission determined that “OGC’s actions did not impact the investigation or the ultimate determination of Complainant’s case to such an extent that a more severe sanction is warranted.”

If you’re thinking, “That’s it?” you had a similar response as mine when I read this case. If EEOC considers this such a huge injustice, why are the sanctions so weak?

If agencies were to take the Josefina L. decision as an EEO policy, the accused supervisor would be hung out to dry with no help, unless he hired his own attorney to assist during the investigation stage. (A quick look at the Laffey Matrix tells you that’s out of the question for most supervisors.) If agencies were to take the Josefina L. decision merely as a continued expression of the Commission’s wish list or preference, they might not change anything in the way they provide assistance during the investigation.

As far as we are aware, there is no law or regulation that specifically prohibits all agency counsel from providing advice to supervisors during EEO proceedings. But Management Directive 110, Chapter 1, Section IV, says:

Because the agency carries this responsibility of impartially processing discrimination complaints, conflicts of interest can arise when agency representatives in offices, programs, or divisions within the agency with a legal defensive role play a part in the impartial processing. This does not mean that any involvement in the EEO process by the Office of General Counsel or Office of Human Capital automatically creates a potential conflict, but instead refers to impermissible involvement in the EEO process by those employees or units of employees designated to represent the agency in adversarial proceedings. See Complainant v. Dep’t. of Defense, EEOC Appeal No. 0120084008 (June 6, 2014) (finding that an agency representative should not interfere with the development of the EEO investigative record by “us[ing] the power of its office to intimidate a complainant or her witnesses”); see also Rucker v. Dep’t. of the Treasury, EEOC Appeal No. 0120082225 (Feb. 4, 2011) (stating an agency “should be careful to avoid even the appearance that it is interfering with the EEO process.”) [bold added]

I’m all for an impartial EEO investigation. After all, the law requires it, and it’s only fair. When agency defense counsel is clearly looking to impact the investigation, we have a big problem and a violation of the law. But is impartiality automatically thrown out the window when an agency attorney assists an accused RMO through the process? Not automatically, but it should cause you to pause. Look at the bold text in MD-110. My read says that an attorney who will be defending the agency should not be involved, but it doesn’t say another attorney cannot be involved. A federal supervisor is presumed to be acting on behalf of the agency, so why shouldn’t someone in the agency (perhaps a different attorney, or an L/ER specialist not involved in agency defense) help the supervisor prepare to explain her actions to an investigator?

Is there a happy medium? What if agencies:

1 – Build a wall around an attorney in OGC who can work with the supervisor during the investigation, and then do nothing else on the case (therefore, not become the agency’s “representative”); or

2 – Use an L/ER specialist to work with the supervisor in the investigation stage, so as not to mingle the defense role with the ongoing investigation; or

3 – Hire outside counsel to work with the supervisor during the investigation stage, to assist in the development of the affidavit, and any other related matters.

Would those options make agencies more comfortable while simultaneously making EEOC happy? Your ideas and thoughts are welcome. Hopkins@FELTG.com

Can Federal Employees Smoke Pot?

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By Deborah Hopkins, August 15, 2018

I live in Washington, DC, and on any given day, I’ll smell the unique scent of marijuana several times as I go about my daily activities. During a 6 a.m. run – yep, there’s a strong hint of weed in the air as I run through my neighborhood in NW. I guess it goes well with coffee? Walking to the Metro behind someone who is openly smoking a joint? Happens all the time. A car drives by, windows open, and out wafts the pungent smell of cannabis? You’d better believe it. Recreational marijuana is legal in DC, so it’s everywhere. Literally, everywhere.

  • Fun Fact 1: It’s illegal to sell in DC, but you can give it away for free. Or you can buy something – say, a pencil, for $20 – and with it comes a free joint. There are even smartphone apps for easy ordering. Gotta love those legal loopholes.
  • Fun Fact 2: It’s technically only legal to use in the privacy of your own home, and its use is prohibited in public places such as sidewalks, hospitals, buses, and on federal property. But that’s not really enforced much.

So, anyone who lives in DC is allowed to use marijuana, right? Wrong.

It is illegal for federal employees to use marijuana in any form – smoke, edibles, tinctures, pens, etc. – if they are employed by a federal agency, even if they live in a place where marijuana is legal. So if a federal employee living in DC uses marijuana, it’s very likely she will have to say goodbye to her federal job because she will be removed, most likely for misconduct or suitability reasons.

The same applies for federal employees in the nine states where recreational marijuana is currently legal: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington. (About 20 additional states allow for its use with a medical license.)

There’s proposed legislation in Congress that would change that. The bipartisan bill Fairness in Federal Drug Testing Under State Laws Act (H.R. 6589) was recently introduced by Charlie Crist (D-FL) and co-sponsored by Drew Ferguson (R-GA). Look at that, Democrats and Republicans on the same page about something! In its current form, the bill would bar the federal government from denying employment or making federal employees “subject to any other adverse personnel action” if they tested positive for marijuana while living in a state where its use is legal.

A few weeks ago, Senator Chuck Schumer (D-NY) introduced the Marijuana Freedom and Opportunity Act (S. 3174) which would take marijuana off the list of controlled substances at the federal level. That bill hasn’t gone anywhere yet.

A few more statistics: According to one article I read, about 42 percent of government employees surveyed (includes state and local government) approve of legalizing recreational and medicinal marijuana and about 21 percent think only medicinal marijuana should be legalized. Roughly 11 percent oppose legalizing it in any form.

Now that we’re on the same page regarding the legality of marijuana use by federal employees, I want to answer a few questions that routinely come up during training sessions.

Can a federal agency require a drug test from an employee suspected of being under the influence of marijuana?

There are two categories we need to look at here: drug testing positions and non-drug testing positions.

Drug Testing Positions:

An agency can order a drug test of an employee if the employee occupies a position that has been identified as part of the agency’s drug testing program, and the agency has a reasonable belief the employee is under the influence. Mandatory drug testing is a search and seizure under the Fourth Amendment and must be reasonable to pass constitutional muster. NTEU v. Von Raab, 489 U.S. 656 (1989).

In addition, an employee is generally required to comply with an order to take a drug test first, and to challenge the order after the fact. Watson v. DOT, 91 FMSR 5447 (1991)

In order to sustain a charge of failure or refusal to comply with an order to undergo a drug test, the agency must prove:

  1. The employee was given an order to undergo a test;
  2. The order was lawful (i.e., within the agency’s authority);
  3. The employee failed or refused to comply; and
  4. The failure or refusal was not justified.

Garrison v. DOJ, 95 FMSR 5215 (1995)

Non-Drug Testing Positions:

The agency’s drug testing program has to be designed to balance the needs of the agency relative to the particular types of positions with an employee’s rights to privacy. So if the employee is just a regular old employee occupying a regular old position, he generally cannot be ordered to undergo a drug test. A good agency strategy is that if it suspects drug intoxication in an employee who does not occupy a testing position, offer the drug test anyway. If the employee refuses, that refusal can be used when evaluating the other evidence (bloodshot eyes, smell of marijuana, etc.). There is a “reasonable suspicion” exception that bumps up against constitutional issues, and exceptions if there is an accident in the workplace, but generally an agency wouldn’t even need to go the drug testing route if there is preponderant evidence the employee is under the influence.

Can a federal employee use marijuana as a reasonable accommodation for a disability?

While medical marijuana has been shown to be effective for treatments from stomach ulcers to glaucoma to cancer, it is NOT a reasonable accommodation because its use violates federal law.

What happens if a federal employee doesn’t use marijuana but lives in a home where non-federal employees smoke, grow or otherwise use marijuana?

Just ask the former USDA employee whose husband grew and sold marijuana on their property in California, a state where it was legal to do so. While there was no evidence the employee actually used marijuana herself, residing in a place where it was grown and sold was enough to cost her a GS-9 Forestry technician position.  Avila v. Agriculture, MSPB No. SF-0752-17-0488-I-1 (February 26, 2018) (ID).

Is using marijuana while a federal employee a zero-tolerance, automatic removal?

No. In fact, zero-tolerance, automatic-removal policies are illegal in the government with a few exceptions. As the law stands, just about every executive agency (except the VA) must determine the appropriate penalty by considering the Douglas factors in a case where an employee is using marijuana. Sometimes, we see agencies incorporate last chance agreements with people who use illegal drugs, and those can be very effective. If successful, you retain an otherwise good employee. But if the employee violates the agreement, it’s immediate removal.

Here’s a case example: The USPS removed an employee who violated a last chance agreement that included a provision prohibiting her from working under the influence of drugs or alcohol while on duty. She was sent for a drug and alcohol test after her supervisor noticed she was having difficulty keeping her balance and her eyes were “red and glossy.” She tested positive for alcohol and marijuana. As last chance agreements go, this meant immediate removal for the employee. Complainant v. U.S. Postal Service, EEOC No. 0120130190 (2014).

What if a supervisor believes a federal employee is under the influence of marijuana at work, but doesn’t want to discipline the employee because the employee is much more pleasant to work with when he is high?

I have been asked this more than once, and I laugh out loud every time because I can see why this scenario might be tempting to ignore. That’s between you and your agency, but I bet you know the correct answer: Your job is on the line if you let that one go.

We’ll keep you posted on the proposed legislation if it goes anywhere, but in the meantime, Just Say No. Hopkins@FELTG.com

Is There Such Thing as a Triple-Negative?

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By Deborah Hopkins, August 15, 2018

A few days ago I saw a news headline from a well-known legal resource that said, “Judge declines to dismiss suit against ban on transgender people in military” and I had to stop and re-read it a few times as I tried to figure out what it was saying. Is this a double-negative? A triple-negative? And I’m still not sure I understand what the story is about; I didn’t click on the link because I couldn’t get past the headline. Maybe I’m impatient, but I have to think a lot of other people are as well.

If you have to read a sentence more than once in order to understand it, then you have a poorly written sentence. With legal writing it can be tempting to use complex words and long sentences, but the Plain Language Movement is alive and well, and people from appellants to union reps to judges appreciate legal documents that make sense and are easy to read – the first time.

Below are a few of the helpful tips we teach in FELTG’s legal writing classes.

Use F-IRAC

This method gets beaten into our brains in law school, after which we promptly forget we’ve ever learned it. But it’s actually an incredible way to stay organized, to keep the reader moving along, and inevitably lead to the conclusion you’re making.

Facts: What happened?

Issue: What is this about?

Rule: What is the guiding law on this topic?

Analysis: How does the law, when applied to the facts, support my position?

Conclusion: Answers the question posed in the issue.

Don’t Bury the Lead

Legal writing is not creative writing and it can feel a little boring sometimes. But you don’t want people to have to wait until the end of the document to know what the document is about. The biggest reason is that most people won’t actually read the entire document. So do yourself (and your client) a favor and put the important stuff up front.

Don’t Characterize the Facts

It can be tempting to add a little flair to the factual narrative but be careful to use only facts and not opinion. If opinion is interjected, it can damage your credibility and your entire case might suffer as a result.

Example of characterization from the agency side: Supervisor Cook asked the grievant to stop wasting time and to return to his assigned duties. In response and without provocation, the grievant spun away, ignoring the manager’s lawful order, and essentially engaged in an illegal strike.

Example of characterization from the employee’s side: The “temporary” supervisor ordered Mr. Jones to get back to work immediately with no excuses accepted. Trying to avoid an unnecessary confrontation, Mr. Jones stepped away to give the “temporary” supervisor time to cool down.

Rewritten without characterization: The acting supervisor told the employee to return to work. The employee turned and walked away.

Choose Your Verbs Wisely

One little verb can change the whole meaning of a sentence, so be smart about your verb selection and don’t use a thesaurus carelessly.

Take a look at these examples:

  • The witness affirmed that she saw the supervisor touch the complainant’s breast.
    • The word affirmed implies trust.
  • The witness stated that she saw the supervisor touch the complainant’s breast.
    • The word stated, along with words such as said or testified, implies neutrality.
  • The witness alleged that she saw the supervisor touch the complainant’s breast.
    • The word alleged implies doubt.

There’s plenty more we’ll cover in future articles, but this should get you started. In the meantime, have fun being a little boring in your writing. 🙂 Hopkins@FELTG.com

How Specific Does a Legitimate, Nondiscriminatory Reason Need to Be?

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By Deborah Hopkins, July 18, 2018

One of the things we teach in just about all of our FELTG classes is the importance of documentation. Management in the federal government is a defensive business. Because employees can challenge almost anything a supervisor does in the workplace in some forum or other (think administrative grievance, union grievance, EEO complaint, MSPB appeal, Office of Special Counsel, Department of Labor), it is exceedingly important for supervisors to document why they are taking whatever action they’re taking – or not taking.

That’s easy to do in cases of performance or discipline and has become second nature to our FELTG-Certified Practitioners. But when you’re at hearing in 2023, will you really remember why you denied someone’s annual leave request last week? Probably not, unless you documented it when it happened, and have those notes to refer to down the road. That’s why we also strongly advise supervisors to make notes about more than just discipline or performance, because there are certain times when a faded memory fails to meet a legal threshold.

Let’s look at some cases of Intentional EEO Discrimination involving circumstantial evidence. While the events don’t occur in a ping-pong format, the general analysis is this:

  1. Complainant alleges he is treated unfairly in some way because of, or motivated by, his protected EEO category.
  • Examples: nonselection; denial of training; reassignment; low performance rating.
  1. Agency articulates a legitimate, nondiscriminatory reason about the allegation.
  • Supervisors: insert your documentation here.
  1.  Complainant demonstrates pretext. That means the complainant has to show:
  • The agency is lying, or
  • The agency is telling the truth but its action was motivated by discrimination.

Problems arise for agencies when the legitimate, nondiscriminatory reason is not specific. If times, dates, and details aren’t there, that vague response is generally not enough to overcome pretext.

Let’s say the complainant alleges she wasn’t promoted because of her religion. The selecting official, when questioned about why the selectee was chosen and the complainant was not, says, “I don’t remember specifically because it was a while ago, but I am sure I chose the selectee because she was the best qualified. Her interview was really good, and plus the complainant came somewhere pretty low on the score sheet.”

Sounds pretty common, but that selecting official’s statement alone is not specific enough to overcome that presumption of discrimination, so the complainant is probably going to win this case. Does this mean she was definitely discriminated against because of her religion? Nope, there may not even be any actual merit to the claim – but there will probably be a discrimination finding anyway.

As our good friend and FELTG instructor Ernie Hadley writes in his EEO Guide, the legitimate, nondiscriminatory reason offered by the agency “must do more than merely distinguish the particular facts of a situation.” In order to be considered sufficient, it must “articulate some meaningful distinction” which is related to a legitimate aim of the agency.

Below are a few cases to give you a better idea of what this looks like in the real world.

An applicant applied for a job at USPS and, though she was qualified, her application was not forwarded to the selecting official. She challenged this as discriminatory based on her gender. There were no notes, scores, or specific explanations of the scoring process in the agency record. A selection panel member was questioned about why the complainant was not considered, and his assertion that he “could only assume” she did not show she had the skills needed to work at a higher level was inadequate to overcome the allegation of discrimination. Hatcher-Capers v. USPS, EEOC No. 07A60008 (2006). Does this mean she was most definitely discriminated against because of her gender? No. Maybe she was; maybe she wasn’t. But the vague response from the selecting official was not enough not overcome her allegation, so she won her complaint.

In a very recent case, an IT Specialist alleged he was not selected for a supervisory position because of his sex and his age (69). The selecting official had since left the agency, but in an unsworn statement, said that he had chosen the 37-year-old female selectee based on merit. In considering the evidence, the EEOC said the agency record was “bereft” as to how the five candidates were chosen for interviews, nor about the real reasons why the selectee ultimately was chosen. Therefore, the agency did not provide a legitimate, nondiscriminatory reason for its actions. William G v. DLA, EEOC No. 0120160837 (February 14, 2018).

Now that you’ve seen what’s not enough of a legitimate, nondiscriminatory reason, let’s look at a case that shows what is enough.

A USPS employee was terminated after he got into a physical altercation with a supervisor. He alleged that he was removed because of his sex and because he had bipolar disorder. The agency provided a [specific] legitimate, nondiscriminatory reason for its removal action: The physical altercation with the supervisor violated its documented standards of conduct. Hlinka v. USPS, EEOC No. 0120064401 (2008). Easy peasy. That’s how you do it.

So you see, in most cases you’ll be just fine, as long as you have your documentation handy. If you don’t have a notebook now, go buy one and start tracking why you do what you do. As we say at FELTG, we hope you never need those notes, but you’ll be awfully glad you have them if you do. Hopkins@FELTG.com.

Use these Clickbait-Type HR Terms for Loads of Fun at Cocktail Parties

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By Deborah Hopkins, July 18, 2018

Sometimes, after a long day, I find myself in a labyrinth of articles intended to draw in the reader with catchy titles or claims – clickbait. Every now and then (though sadly not often) I find something amusing, interesting, or valuable. Of course, given my profession I’m drawn to HR-and-legal-type articles, but I’m not immune to other topics – especially on a transcontinental flight when the WiFi is actually working.

It’s summertime and while there are plenty of important things happening every day, sometimes you just need a little mindless reading, so here for your reading pleasure is a list, in no particular order, of some trendy HR and legal terms that I’ve come across in recent months. You’ll see a loose definition, and beneath it the word or term used in a sentence.

Mainstream – a verb people are using that basically means “to offer for consideration.”

  • “I’ll mainstream this policy draft to the CHCO ASAP.”

Socialize – another trendy word for passing around a document in the workplace, so that important people see it. Often used in conjunction with mainstream.

  • “Let me socialize your resume around the front office to see if anyone wants to mainstream it.”

Upskill – a term for teaching an employee new workplace skills.

  • “Employees who participate in voluntary upskill seminars are more likely to be promoted.”

Retention interview – an interview with a current employee, who has no plans to leave the agency, about why she still works there. (Umm, what?)

  • “I’ll meet you for lunch after I get out of my retention interview with the Director.”

Deep dive background – a number of employers don’t just call references. No, they comb through social media to learn all they can about a potential hire, before scheduling an interview. This is a deep dive.

  • “Before we bring him in for an interview, we need to do a deep dive background on the candidate so there aren’t any surprises.”

Lifeline – a term that signifies the heart and soul of why your organization exists and who is most essential to its ability to achieve the agency mission.

  • “The GS-12 analysts are our lifeline; without them we can’t do anything.”

Mobility pyramid – an organizational model that identifies who is least likely, up to who is most likely, to be willing to be reassigned in the event of a reorganization.

  • “The 2018 mobility pyramid shows that 30% of our workforce is rooted to the headquarters region.”

People and Culture – I saw this one in an Australian HR publication, and it is how a particular company refers to its HR department. In fact, HR departments all over the world are getting rid of the Human Resources moniker in favor of cutting-edge labels like People Operations, Employee Experience, or Partner Resources.

  • “We have a job opening for Assistant Director of People and Culture.”

Delayering – though this looks like a word for slowing something down, it actually means getting rid of hierarchy.

  • “The agency head is considering delayering the federal contractor selection system.”

Induction – a word for what we used to call onboarding or orientation.

  • “The employee will arrive for induction Monday morning at 8:00.”

360-degree feedback – a process of performance appraisal where employees are rated not only by supervisors, but by coworkers, direct reports, and customers too.

  • “We’re running a pilot on 360-degree feedback to see if it improves the employee’s motivation to perform.”

People analytics – turning people into statistics in an attempt to solve grand-scale problems.

  • “As our organization grows, we need to run a predictive people analytics test to determine how many new hires to induct as part of the delayering process.”

And finally …

Contribution – a term I recently saw an agency start using, to replace the word performance. Yes, that’s right, instead of a Performance Plan, the employees are given Contribution Plans, and they are rated not on their Performance but on their Contribution to the agency.

  • “Please meet me at 2:00 Tuesday for your mid-year Contribution assessment feedback meeting.”

 

As the teenagers used to say in 2016, I can’t even.

My brain hurts. Whatever happened to words like apply, interview, and job offer? I guess that’s for greater minds than mine to determine.

And with that, go forth and enhance your vocabulary. Hopkins@FELTG.com