Is This a New Type of Tangible Employment Action?

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By Deborah J. Hopkins, February 14, 2023

When we discuss tangible employment actions in our EEO classes, we usually focus on facts in existing case law: a supervisor takes a pay-related action (such as a suspension, or non-selections) against an employee because of the employee’s response to the supervisor’s unwelcome sexual advances.

The Supreme Court has ruled that a tangible employment action constitutes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

A fairly new case from EEOC has seemingly broadened the type of action considered a “tangible employment action” in Federal agencies and has also included actions motivated not by an employee’s responses to sexual overtures but by a supervisor’s distaste for a complainant because of the complainant’s sexual orientation. In this case, the complainant accused his supervisor of creating a hostile work environment based on sex, citing several examples over a span of four years. The complainant claimed his supervisor:

  • Made negative comments about the complainant’s sexual orientation in a chat message with a coworker.
  • Was condescending to the complainant in emails.
  • Verbally attacked the complainant about his breaks and lunch periods.
  • Informed the complainant that he could only use certain doors when arriving to and leaving the workplace, making the door closest to the supervisor’s workstation off-limits.
  • Told the complainant that he was no longer allowed to “loiter” in the parking lot after work hours.
  • Required the complainant to inform her when he was coming and going from the workplace, despite a maxi-flex schedule.
  • Excluded the complainant from office discussions in an effort to get him to resign.

The agency asserted it was not liable because it exercised reasonable care to prevent and promptly correct the harassing behavior when:

  • It followed its internal workplace harassment policy once the complainant made a claim of harassment.
  • It allowed the complainant to maximize telework in order to avoid the supervisor while the agency worked to resolve the situation.
  • It eventually transferred the supervisor to a lower-graded position within the agency.

In its FAD, the agency found the supervisor created a hostile work environment but argued there was no agency liability because the “[s]upervisor’s actions did not result in a tangible employment action.”

On appeal, EEOC disagreed and found the agency was liable:

Despite this approved [maxi-flex] work schedule, Supervisor made it clear to Complainant that he was only allowed strict break and lunch times. Additionally, despite his maxi-flex schedule, Complainant was informed that he was to notify Supervisor any time that he was leaving his workspace. Lastly, Supervisor acknowledged that she informed Complainant that he was only allowed to use certain doors for exiting and entering. We find these actions constitute tangible employment actions as they altered the terms and conditions of Complainant’s employment. [bold added]

Nathanial P. v. NPS, EEOC Appeal No. 2021000613 (Jan. 13, 2022).

We discuss the ever-changing world of hostile work environment harassment as part of our comprehensive EEOC Law Week, next held March 13-17. Join us for the day or the week; we’ll be happy to have you there. Hopkins@FELTG.com

Do the FELTG Check-in and Ensure Accommodation is Still Effective

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By Dan Gephart, February 14, 2023

It was a reasonable accommodation success.

Until it wasn’t.

The accommodation process is a fluid one. You can’t provide an accommodation and then forget about it. This is particularly important now, as many employees with reasonable accommodations make their way back to the physical workplace.

Kristopher M. v. Department of Transportation, App. No. 2019001911 (EEOC 2020) provides a perfect lesson on the importance of continuous communication with employees AFTER they receive accommodations, something that we at FELTG have coined the “Check-in.”

[Editor’s note: For more on this topic, register for Revisiting Existing Reasonable Accommodations, a 60-minute webinar on April 13.]

Upon his hiring in 2005, an IRS agent requested and received a BAT keyboard as a reasonable accommodation. The agent had paralysis in his left hand and the keyboard allowed him to enter data with his right hand.

So far, so good, right?

Fast-forward seven years. The employee’s typing workload increased, causing serious strain, fatigue, and a tingly pain in his right hand. The BAT keyboard was no longer an effective accommodation. The agent requested Dragon software in 2012, and the agency approved it. The software was installed on the employee’s computer, and he was provided training.

So far, so good, right?

Unfortunately, the Dragon software did not work well with the agent’s computer. His computer screen would freeze. Applications would just shut down. He was unable to simultaneously use the Dragon software with the other software programs required for his job (Word, Excel, etc.).

It is here, FELTG Nation, where the process broke down.

The agent struggled with the software and let the agency know. Per the EEOC decision, it appears that there was a back-and-forth between the reasonable accommodation staff and IT about who had the responsibility to address the employee’s computer issues. Meanwhile, the employee went back to using the BAT keyboard. He developed carpal tunnel syndrome in his right hand and pain in his right arm and neck.

Even though it had twice listened to the employee and gave the employee his requested accommodation, the agency still failed to provide the employee with an effective accommodation, per the EEOC AJ.

On appeal, the commission determined the agency’s efforts to deal with the Dragon software/computer issues were either unduly delayed or only partially implemented. The Dragon software was not an effective accommodation, the EEOC ruled. It ordered the agency to engage in a rigorous interactive process with the employee for a 60-day period to come up with effective accommodations.

Wouldn’t you rather just do the FELTG Check-in with employee, see how the accommodation is working and make the adjustments, when necessary, rather than be ordered by the EEOC to conduct a specified period of the interactive process?

The FELTG Check-in is free and ensures that your employee has all the tools he/she/they need to do the job’s essential functions and help the agency meet its mission. Skipping the FELTG Check-in could be damaging to productivity, morale, and the agency’s bottom line. Beyond the required interactive process, the agency in the Kristopher case was required to:

  • Pay the agent $75,000 in compensatory damages within 60 days.
  • Pay the agent $68,761.69 in attorney’s fees and costs ordered by the AJ within 60 days.
  • Provide the supervisors and coordinators involved to take at least eight hours of reasonable accommodation training.

Remember: Your agency’s obligation to provide an effective accommodation does not end when you provide an accommodation. You must ensure the accommodation is actually effective. Gephart@FELTG.com

The Good News: Two FLRA Members Can Still Issue Decisions

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By Ann Boehm, February 14, 2023

On Jan. 3, 2023, FLRA Chairman Ernest DuBester’s term ended. This means the FLRA currently has only two members: now-Chairman Susan Tsui Grundmann, Democrat, and Member Colleen Duffy Kiko, Republican. With two members, the FLRA has a quorum that can continue to issue decisions. But will that happen with two members from different political parties? Several things indicate the answer to that question is, “yes.”

Let’s start by looking at what has happened since Jan. 3, 2023. The FLRA has issued six decisions since that date. That indicates that these two members, from different political parties, can indeed agree and issue decisions.

There is also historical information that suggests the FLRA will continue to issue decisions, even with two members from different political parties. From May 2000 to November 2000, Democrat Don Wasserman and Republican Dale Cabaniss were the FLRA’s members. They issued 100 decisions during that time. That means they agreed 100 times.

From August 1995 to February 1996, Democrat Phyllis Segal and Republican Tony Armendariz were the FLRA’s members. They issued 67 decisions during that time. That means they agreed 67 times.

Weird, isn’t it? People from different political parties can actually agree on something.

The FLRA has been around since 1978. Throughout its existence, we have seen that Republican members can be a little more pro-agency, and Democratic members can be a little more pro-union. But there are limitations on how those tendencies impact on FLRA member decisions.

For one thing, the FLRA members are charged with interpreting the very detailed Federal Service Labor-Management Relations Statute. It says what it says.

In addition, the FLRA members have guidance from 44 years of FLRA case law interpreting that same statute. There are also 40-plus years of decisions from the U.S. Courts of Appeals and U.S. Supreme Court interpreting that statute.

So, what does this all mean? Chairman Grundmann and Member Kiko are likely to issue a lot of decisions while they serve together. If they disagree, there is no quorum, and no decision will issue. History suggests we will not see that occur often. And that’s Good News. Boehm@FELTG.com

When Clean Record Agreements Address Retirement: OPM Gets the Final Say

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By Barbara Haga, February 14, 2023

In this third column of the series on Clean Record Agreements (CRAs), I am focusing on retirement. Before we return to the 2013 MSPB report Clean Record Settlement Agreements and the Law, we need to look at another reference. 

OPM Guidelines

If you are in the business of settling cases, whether adverse actions or EEO, you should have the OPM Settlement Guidelines at your fingertips. OPM’s document opens with: “Since OPM administers the retirement funds, agencies may not agree to matters in settlement agreements that give more than what the retirement regulations would provide.” The report includes the following illustration:

For example, assume that an employee who meets the statutory age and service requirements for immediate retirement is discharged on grounds of misconduct. A court or administrative body could order reinstatement of the individual with back pay if it determined that the discharge was erroneous. It could not order a two-grade level promotion effective three years prior to the removal at issue. A claimant may urge that such a provision be included in a settlement, to create a higher annuity, by altering the “high-three” year average pay that is part of the annuity computation formulas under both CSRS and FERS. Because the court or administrative body could not order such a retroactive promotion, the settlement may not provide it.

Disability Retirement. OPM guidelines also include limitations related to eligibility to retire under disability provisions. OPM states the application must be filed within one year of the date of separation unless the employee was mentally incompetent. Also, per OPM, it is inappropriate for an agency to settle an action by putting the employee in a non-pay status to a date within the one-year period solely to allow the individual to file for disability absent compelling evidence that the individual was actually mentally incompetent.

The Board and OPM have not always been on the same page regarding the issue of settlements that change the date of a separation action to a much later date, which brings the appellant into the one-year period for filing for disability retirement. In Parker v. Office of Personnel Management, 93 MSPR 529, (MSPB 2003), aff’d  91 F. App’x 660 (Fed. Cir. 2004) the Board reversed itself on whether OPM could deny benefits in such situations.

Parker stands for the proposition that when OPM is not a party to a settlement agreement, such as when an agency settles an erroneous removal with an employee, it can review such a settlement to determine if a separation date was fixed solely to meet statutory requirements to entitling an appellant to annuity benefits. In Parker, the agency gave a retroactive four-year term appointment in the settlement that would allow the employee to gain additional service time, which would qualify him for discontinued service retirement (DSR). Once that term ended, he would be eligible to apply for DSR. OPM found the appointment not qualifying service, because Parker was on military duty for some of the time. OPM determined the appointment was simply a construct to allow the employee to obtain retirement benefits when he would have otherwise not been eligible.

In prior cases, the MSPB had found a settlement entered into the record of an appellant’s appeal for enforcement purposes was equivalent to a final Board order in all respects, and that OPM was required to affect its terms when adjudicating the appellant’s entitlement to retirement benefits. In Parker, however, the Board found that OPM was not obligated to credit the appellant with service based on such a “fabricated” appointment.

Inability to Perform. With an inability to perform action, if the individual subsequently applies for disability retirement, the case is subject to the Bruner presumption. If the agency removes for inability to perform, then the employee is presumed to meet the criteria for disability retirement. Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed. Cir. 1993). However, OPM does not apply the presumption unilaterally.

For example, an individual is separated for misconduct or other non-medical related performance grounds, but, by agreement, documentation is changed to base the separation on medical inability to perform the job. Where this is done merely to enhance the individual’s application for a disability annuity, OPM will not apply the Bruner presumption. If the medical evidence demonstrates that the original personnel action was erroneous because the individual was unable to perform the job and the agency was unaware of the medical conditions at the time of separation, OPM then will apply the presumption.

The bottom line: OPM must approve the disability of discontinued service retirement. While you may settle with the intention that retirement benefits will be granted to the employee, only OPM can make that determination. OPM may deny the benefits if it believes the action was created solely to enable the person to obtain retirement benefits for which he would otherwise not have been eligible. If that happens, there goes your settlement.

More from MSPB

A disability retirement application requires a supervisor’s statement about the employee’s limitations and the impact of those conditions on performance, conduct, and attendance. The statement is completed on an official government form and the person completing it must sign and certify that the information is true to the best of her knowledge.  Not answering  questions on the document is not an option. The report explains the issue and the options to deal with it:

Occasionally, parties will settle an appeal with the expectation that the appellant will apply for disability retirement. Under these circumstances, the parties should anticipate that the agency’s obligation to provide a truthful supervisor’s statement may conflict with the general disclosure limitations of the CRA. A well-drafted CRA should take this into account and address the supervisor’s statement separately, adjusting the parties’ expectations of what the supervisor’s statement may (and must) contain, and defining any limitations on the information that the agency may provide. As discussed below, parties have taken different approaches to this matter, including promises to support an application, promises not to oppose an application, and promises to refrain from including negative remarks in the supervisor’s statement.

The report includes examples of cases where those various options were used. The case where the agency was found not to have breached the settlement agreement was Miller v. USPS, 90 MSPR 550 (MSPB 2002). In Miller. the settlement agreement stated the agency would not affirmatively oppose the appellant’s disability retirement application. However, the agreement also added that it did “… not require the agency to provide incorrect information to the Office of Personnel Management.” The Board found the information provided by the agency, which ultimately led to a denial of disability retirement, was factual and did not constitute a breach of the agreement.

[Editor’s note: Join FELTG for Clean Records, Last Rites, Last Chances, and Other Discipline Alternatives, a two-hour virtual training on May 17.]

New Processing Rules for COVID-19 Workers’ Comp Claims Take Effect

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By Frank Ferreri, February 14, 2023

As the old year came to a close, the U.S. Department of Labor’s Office of Workers’ Compensation Programs (OWCP) issued a Federal Employees’ Compensation Act (FECA) Bulletin (No. 23-02, to be exact) announcing changes that would be coming related to COVID-19 claims in the new year.

Well, it’s now February, and those changes took effect Jan. 27. So, what’s the new setup? The following chart breaks it down.

Topics Explanations
COVID-19 diagnoses prior to Jan. 27 A COVID-19 positive test result that occurred prior to Jan. 27 triggers application of the steps in the American Rescue Plan Act (ARPA), which purport to make it easier for Federal employees to file and receive benefits for COVID-related workers’ compensation claims.

For post-Jan. 27 positive results, the five basic elements set forth in 20 CFR §10.115, which apply to Federal workers’ compensation claims generally, govern.
What evidence is needed to establish a claim under 20 CFR §10.115? 1. The claim must be filed within FECA’s time limits.

2. The injured person must have been, at the time of injury, an employee of the United States as defined in 5 U.S.C. § 8101.

3. The claimant must provide evidence:

  • Of a diagnosis of COVID-19, and
  • That establishes they actually experienced the events or employment factors alleged to have occurred.

4. The alleged events or employment factors must occur while the employee was in the performance of duty.

5. The COVID-19 must be found by a physician to be causally related to the established events or employment factors within the employee’s Federal employment. (Note: It’s not enough that the condition manifests itself during a period of Federal employment, nor is it enough that the claimant believes that factors of employment caused or aggravated the condition).
What form should be used? Claims for COVID-19 diagnosed after Jan. 27 should generally be filed on the CA-2. This is because in most cases, there is no clear, identifiable incident or incidents over a single day or work shift to which an injured worker can specifically attribute a COVID-19 diagnosis.

Now that Congress intends to end specialized treatment of COVID-19 claims, the coronavirus will receive the same treatment as other airborne infectious diseases “where the specific etiology is unclear.”
An exception allowing use of the CA-1 A CA-1 can be used if the event alleged to have caused the diagnosed COVID-19 is identifiable as to 1) time; and 2) place of occurrence. It must be a specific event or incident or series of events or incidents during a single day or work shift to warrant CA-1 usage.
The role of claims examiners A claims examiner (CE) must make a factual determination by reviewing the evidence to decide whether the claimant actually experienced the specific events or employment factors claimed on a CA-1 or CA-2.

A CE may credit statements made by the claimant regarding facts of which the claimant has direct knowledge.

OWCP provided two examples:

1. If the claimant alleges that they were in close contact to 10 individuals at work, which the claimant believes resulted in the claimant getting COVID-19, OWCP may accept as fact that the claimant was in close contact to 10 individuals at work.

2. If the claimant alleges their COVID-19 is the result of “sitting next to an individual that had tested positive for COVID-19,” OWCP may accept as fact that the claimant sat next to the individual but would require the claimant to provide evidence in support of the allegation that the individual sitting next to them was COVID-19 positive.
Report required A rationalized medical report establishing a causal link between a diagnosis of COVID-19 and factors of Federal employment is required for all claims of COVID-19 diagnosed after Jan. 27.
Medical documentation One holdover from the pandemic era is the medical evidence required to establish a COVID-19 diagnosis, which is any of the following:

1. A positive polymerase chain reaction (PCR) or antigen COVID-19 test result.

2. A positive antibody COVID-19 test result combined with contemporaneous medical evidence that the claimant had documented symptoms of and/or was treated for COVID-19 by a physician.

3. A COVID-19 diagnosis from a physician together with rationalized medical opinion supporting the diagnosis and an explanation as to why a positive test result could not be obtained (this could apply when a claimant has a false negative test).
Self-administered COVID-19 tests Although at-home over-the-counter test kits are easy to use and much easier to find than they were not too long ago, they are insufficient to establish a diagnosis of COVID-19 under FECA. Why? There’s no way for FECA claims staff to affirmatively establish the date and time that the sample was collected or that the sample collected was from the injured Federal employee making the claim.
Exception for self-administered COVID-19 tests If the administration of a self-test was monitored by a medical professional and the results are verified through documentation submitted by that professional, then an at-home test could be used in support of a claim.

OWCP’s treatment of COVID-19 reflects the stance of the Federal government (and probably broad segments of the general population) that the new normal is shifting from the pandemic phase to the endemic era. The long and short of it is that, for purposes of Federal workers’ compensation coverage, COVID-19 will receive treatment that is akin to other infections caught on the job. Info@FELTG.com

To Avoid the Kraken, Warn Without Threatening

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By William Wiley, February 6, 2023

If you have attended any FELTG training relative to handling misbehaving employees, you have no doubt heard our instructors caution that, from a legal standpoint, the less you do to a problem employee, the better. That’s because Federal employees have significant rights when it comes to challenging management actions, and some challenges can be much more serious than others. Therefore, the more you do, the more you will have to be ready to devote resources to defend, and the greater the odds that you might make a mistake.

Consider an employee’s right to file a complaint of whistleblower reprisal with the US Office of Special Counsel. If a supervisor takes – or even just threatens to take – a personnel action that negatively affects an employee, and that employee can convince OSC that the personnel action probably was motivated by a desire to punish the employee for whistleblowing (or filing a grievance or engaging in some other “protected activity”), then OSC will Release the Kraken! 5 USC 2302. If you have ever been on the receiving end of an OSC investigation and the subsequent threat of a stay or discipline of a management official, then you know that the OSC Kraken can be a very unpleasant Kraken indeed. [Editor’s note: Yes, the Kraken is a bit of hyperbole, but meant only to highlight the thoroughness and effectiveness of an OSC investigation.]

And don’t forget, once you’ve taken a personnel action against an employee who believes that whistleblower reprisal was the actual motivation, even if OSC decides not to prosecute, the employee can file an MSPB appeal: motions, depositions, discovery, hearings … all sorts of things that keep you from doing the real work of your agency. You just don’t want to go here if you can avoid it.

This doesn’t mean that an agency should refrain from dealing with a problem employee out of fear of an OSC investigation. Oh, no, that would be un-American. What it does mean is that a smart agency should figure out how to accomplish the objective with the employee that you want accomplished without unnecessarily triggering a possible complaint.

Here’s an example of how that works:

At FELTG, we teach that, as a general rule, supervisors should not issue letters of warning or counseling. That’s because neither is a required action and they are of little, if any, value relative to progressive discipline or eventual removal. If you’re going to put time and effort into drafting and issuing the employee some document to correct misbehavior, then issue a Reprimand, the traditional first step in progressive discipline.

However, there may arise a situation in which the supervisor wants to do something to get the employee’s attention, or simply to emphasize or clarify the workplace rule that the employee has been violating, without disciplining the employee. Someone in your office comes up with the idea of issuing a Letter of Warning and you get assigned the job of drafting it. What do you do?

Let’s say that Pat has been cooking fish for lunch in the break room microwave, making the office smell just awful. The supervisor wants to issue a Letter of Warning. Consider these two alternative drafts:

 

Letter of Warning (Option A)

To: Pat

From: The Boss

In the future, you are not to cook fish in the break room microwave.

 

Letter of Warning (Option B)

To: Pat

From: The Boss

In the future, you are not to cook fish in the break room microwave, or you may be subjected to discipline.

 

Option A puts the employee on notice of the office rule, an essential element of holding an employee legally accountable for future misconduct. Option B does the same thing, AND ALSO OPENS THE DOOR TO AN OSC INVESTIGATION! MSPB has held that a letter of warning or counseling that does not contain a threat of discipline is NOT a personnel action for the purpose of OSC jurisdiction, but one that does threaten possible future discipline is. Campo v. Army, 93 MSPR 1 (2002); Agee-Long v. GSA, MSPB No. SF-0752-17-0518-I-1 (Jan. 20, 2023) (NP).

Federal employment law is difficult enough when just the minimum is done. Just like packing that bug-out bag for when you have to hike into the wilderness to escape some disaster, you don’t want to carry any more weight than necessary. Employ that same principle when deciding how to do this work. Almost always, the less done, the better. Wiley@FELTG.com

Last Chance Agreement Violation With a Side of Fries

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By Deborah J. Hopkins, January 30, 2023

A last chance agreement (LCA) is an alternative disciplinary option for an agency when an employee has engaged in misconduct that warrants a removal, but the agency gives the employee one final opportunity to keep her job. Typically, the LCA is offered after the employee’s response to the proposal and before the decision is due. An LCA generally includes the employee’s promise to follow all the agency’s rules and maintain successful performance for two years. In exchange, the agency agrees to purge the proposed removal from the file upon successful completion of the LCA. If the employee violates the agreement at any time within the two-year period, the agency can remove the employee as quickly as the day of the violation without requiring another proposal. (This is all written into the terms which we’ll discuss in more detail during MSPB Law Week March 27-31).

An LCA can be a marvelous tool for agencies when an employee engages in removable misconduct, but the agency wishes to give the employee one more chance to show she deserves to keep her job. There are multiple reasons why an agency would employ an LCA:

  • The employee engaged in misconduct the agency cannot ignore, but the employee is truly remorseful
  • The employee engaged in substance misuse and agrees to get treatment if the agency gives her another chance
  • The employee has a unique skillset and would be difficult to replace
  • The job exists in a geographic area where employees are difficult to recruit and a vacant position would be highly problematic for the agency
  • The supervisor has reason to believe the employee has learned her lesson

A recent MSPB case, Bollin v. VA, DA-3443-16-0106-I-2 (Jan. 19, 2023)(NP), involved a VA police officer whose removal was proposed based on two charges:

1.    Failure to follow a direct order, and

2.    Failure to follow supervisory instruction.

The deciding official agreed the evidence and penalty assessment supported removal. Prior to the effective date of the removal, the agency and appellant entered into an LCA. Under the terms of the LCA, “the agency agreed to hold the removal action in abeyance for a 2-year period … and purge the removal and agreement from the appellant’s agency file upon completion of the 2-year period … In exchange, the appellant served a 14-day suspension and agreed that, should he ‘engage[] in any substantiated misconduct’ or violate any other term of the agreement within the 2-year period, then the agency would reinstate the removal action and immediately remove him from his position.” Id. at 2.

Several months later, the appellant violated the LCA when he “was 20 minutes late in departing for firearms training and stopped at a McDonald’s drive-thru to purchase food on the way to the training, which constituted an unreasonable delay in carrying out instructions and an unauthorized use of a Government vehicle.” Id. at 3. The agency removed him for these two acts of misconduct. While seemingly minor, the conduct triggered the violation of the LCA.

As these cases go, the appellant filed an appeal to MSPB. The Board found no jurisdiction because the appellant violated the agreement, which had included a provision that he waived his MSPB appeal rights over the initial action. So in the end, Officer Bollin stayed fired.

Other types of misconduct that the Board has agreed violate an LCA include:

  • Referring to a co-worker as a “kiss-ass” in a group email (Reveles v. DHS, DA-0752-08-0306-I-1 (May 30, 2008)(ID)
  • Testing positive for alcohol and marijuana while on duty (Complainant v. USPS, EEOC No. 0120130190 (2014))
  • Possession of marijuana (Bruhn v. USDA, 2016 MSB 42)

Not every LCA violation involves French fries, but this is probably a lesson with details none of us will soon forget. Hopkins@FELTG.com

The State of the Civil Service: 2023 Edition

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By Deborah J. Hopkins, January 17, 2023

Happy new year, FELTG Nation! The previous 12 months have included several milestones and significant changes in the Federal civil service. So, I’m once again using the month of January to share some highlights about exactly where things stand in the world of Federal employment law.

MSPB

I can’t imagine a single FELTG reader doesn’t know that after a 5+-year hiatus, we again have a fully functioning Merit Systems Protection Board. The Acting Chair is Cathy Harris (the Senate still has not confirmed her as Chair, but functionally she is still in charge). The two other members are Ray Limon and Tristan Leavitt.

In 2022, the Board members inherited a backlog of more than 3,600 cases. At latest count, somewhere around 700-800 decisions had been issued, 46 precedential and the rest non-precedential, while new Petitions for Review (PFRs) continue to be filed. So, the number of PFRs awaiting Board adjudication remains well above 3,000.

Two of the most significant new decisions include:

  • Singh v. USPS, 2022 MSPB 15 (May 31, 2022), which clarified who is a comparator for the purposes of Douglas factor 6, and
  • Lee v. VA, 2022 MSPB 11 (May 12, 2022), which clarified requirements for demonstrating unacceptable performance before a PIP (as explained in the March 2021 Federal Circuit decision Santos v. NASA).

The Board is once again able to conduct research. It has identified several topics on its 2022-2026 agenda, including Aligning Workplace Flexibilities with the Future of Work, Correcting Employee Performance and Conduct, and Understanding the Roles of Teams and Team Leaders. We can’t wait to see what they learn after a half-decade research hiatus.

For a case law update on the most consequential decisions over the past few months, join us Feb. 14 for Back on Board: Keeping Up with the New MSPB. For a full class on all things Board-related, register for MSPB Law Week, which will be held March 27 – 31.

EEOC

The Equal Employment Opportunity Commission, which has jurisdiction inside and outside the Federal sector, continues to promote President Biden’s inclusion agenda. Areas of focus include raising awareness about the harassment, discrimination, and violence against transgender people, updates to COVID-19 issues, changes in Reasonable Accommodations in a post-COVID world, and much more.

To help promote the EEOC’s mission, FELTG is hosting a 32-hour EEO Counselor training later this month and EEOC Law Week in March. And be sure to check out Dan Gephart’s recent interview with EEOC Chief AJ Regina Stephens about the agency’s priorities in 2023, her thoughts on EEOC-ordered training, and more.

FLRA

The Federal Labor Relations Authority has gone from a full complement of three members down to a quorum of two in 2023, as Chair Ernest Dubester’s holdover term expired at the end of the last Congress. The new Chair is a familiar face to many, former MSPB Chair Susan Tsui Grundmann, who was confirmed to the FLRA several months back and joins previous Chair and now-member Colleen Duffy Kiko.

We still await confirmation of a General Counsel, a position that has been vacant for several years. Charlotte Dye is currently in Acting General Counsel capacity, where she may remain for a maximum of 10 months, unless President Biden nominates, and the Senate confirms, a General Counsel before then. With the two current members from opposing philosophies on several areas of labor-management relations and a nominee for the third member yet to be made by the President, we’ll all wait and see how the FLRA is impacted by this change in dynamics.

For a jump start on what you can expect, join former FLRA employee and current FELTG instructor Ann Boehm on Feb. 2 for the 60-minute What Happens Now at the FLRA?

A significant change within the agency occurred last summer when the FLRA and the Union of Authority Employees (the exclusive representative of the FLRA’s bargaining-unit employees) announced they were re-establishing the FLRA’s Labor-Management Forum.

There have also been some important cases altering FLRA precedent, and a recent decision allowing an agency to discipline a union official for exceeding the bounds of robust debate – a topic of discussion in the Jan. 19 training Drawing the Line: Union Representation or Misconduct. Or join us for FLRA Law Week May 1-5, where the entire world of Federal Labor Relations will be discussed in depth. We can promise the 2023 class will be different than the 2022 version, as we keep up with the changes.

OPM Regs, Return to the Work Plans

In December, the Office of Personnel Management issued new regulations on 5 CFR Parts 315, 432 and 752, as a result of Executive Order 14003. If you missed these important updates, check out our 60-minute recording of the significant takeaways.

Among other things, OPM’s 2022 Federal Employee Viewpoint Survey (FEVS) focused on the current state of telework in agencies. After a largely abandoned attempt to return employees to the physical workplace in 2021 – thanks to the Delta and Omicron COVID-19 variants – 2022 was the year that saw increases in office attendance around the country. A full 56 percent of the Federal workforce reported that they telework one or more days per week, and 36 percent of employees reported that they were required to be physically present at their worksite every single day.

There are varying philosophies about the need for in-person collaboration as balanced against the flexibility and productivity that full-time telework provides. Return to the physical workplace has been a key point of negotiation between agencies and unions – and we don’t expect that to change any time soon. As a result, most FELTG’s classes have incorporated strategies and best practices for managing employee issues in a hybrid work environment, whether it’s harassment or employee PIPs, and everything else in between.

Closing Thoughts

I believe 2023 is looking brighter, with a Federal budget approved through September, more people comfortable traveling and meeting in person, and no major national elections (is anyone else thrilled about this one?).

Stick with FELTG this year and we’ll keep you posted on all the happenings. Hopkins@FELTG.com

To Tell the Truth: Clean Record Agreements and Hiring

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By Barbara Haga, January 17, 2023

Last month, I wrote about problems with clean record agreements (CRA) in the hiring process.  While the OPM regulations now contain no bar to doing them, living up to their terms can present some huge problems. This month, Iet’s look at the impact of CRAs on employees in their future job search.

The MSPB 2013 report Clean Record Settlement Agreements and the Law is an excellent resource if you want to delve into the fine points of these agreements. Pages 51 to 56 of that report deal with an employee’s obligation to disclose information after the signing of a clean record agreement.

Answering Tough Questions

MSPB asked OPM what the employee’s obligation is to disclose the actual nature of the action that was settled if they return to work for the Federal government or are in that process.  You are probably familiar with the types of questions that appear on official forms.

The OF-306 asks in question 12, “During the last 5 years, have you been fired from any job for any reason, did you quit after being told that you would be fired, did you leave any job by mutual agreement because of specific problems, or were you debarred from Federal employment by the Office of Personnel Management or any other Federal agency?”

Question 13.A5 of the Questionnaire for Public Trust Positions (SF-85P) asks if in the last 7 years the individual has been fired, quit after being told he or she would be fired, left under mutual agreement following allegations of misconduct or left following notice of unsatisfactory performance.  Question 13.A6 asks about other less serious actions such as warnings, reprimands, suspensions, or other discipline.  The SF-86, Questionnaire for National Security Positions includes the very same questions.

OPM’s answer to the Board was “yes,” the employee is obligated to disclose the truth.  I wonder how many employees whose representatives are signing CRAs understand that.  The report notes:

“Several of the appellant attorneys we spoke with indicated that the primary reason why appellants seek clean records is to aid them in their efforts to obtain another Federal position.”

We might say these employees are going to go look for employment outside the Federal government. That might be true in some cases, but there will be many trying to return to Federal jobs.

Where has their experience been? Is that Federal experience translatable to a non-Federal job? How many jobs like management analyst and program analyst would be available at comparable pay rates to what Federal agencies pay for that work? And the pay and benefits are the biggest reasons those employees are likely to try to find another Federal job. For many types of work in many localities, working for the Federal government is the best deal in town.

When employees don’t tell the truth on those forms, bad things happen. The examples that the Board describes in the report involve departures/settlement agreements from outside employers. Here are summaries of those:

A tax examining technician with the IRS provided inaccurate information on her OF-306 regarding her termination from two prior jobs.  In response to the question quoted earlier in the article, the examiner answered, “no,” even though she was terminated by her two previous employers.  She was removed for providing false/misleading information on an official employment document. The Board upheld the action. Ly v. Treasury, 112 FMSR 165 MSPB (2012).

An assistant personnel officer was removed for a negative response on employment documents and security paperwork when responding to the questions listed. In this case, the officer argued he was not fired but “released by mutual agreement” due to a mismatch between his skills and the job he was holding. The AJ overturned the removal. The Board restored the removal, indicating that the charge of falsification was proven.  Forma v. Justice, 93 FMSR 5139 MSPB (1993).

A former New York State Police employee was told he would be terminated due to bad judgment and his inability to react appropriately in stressful or complex situations. When hired as a Board Patrol agent (trainee), he responded negatively to the questions about resigning after being told he would be fired. OPM took a negative suitability action in this case. The employee was debarred for three years due to deception or fraud in the examination process.  Again, the AJ did not uphold the action, but the Board restored the negative suitability determination, and the Federal Circuit affirmed without opinion on April 13, 1998.  Pappas v. OPM, 97 FMSR 5368 MSPB (1997).

Recent cases?

I was able to locate one relatively recent initial decision that deals with a Federal employee who failed to disclose he had been removed from a Federal position. This was a GS-15 supervisory human resources specialist.  He had a CRA from one Army installation and then was rehired by another. Torres v. Army, AT-0752-16-0319-I-1/AT-0752-11-0876-C-1, (June 23, 2016).

The employee argued he had bargained for a CRA and was entitled to the benefit of it. The Army had a different answer and removed him based on making false statements. In this case, however, the Army decision was not sustained.

When provided the MSPB report and the information discussed above about employees having to answer truthfully, the AJ said OPM’s answer was not dispositive. The AJ overturned the Army’s removal.

I sincerely hope that the Torres case is in that pile of cases waiting for the new Board to issue a decision.

 

The Good News: You are the Hidden Benefit of In-Person Training

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By Ann Boehm, January 17, 2023

In-person training all but disappeared during the pandemic. Thankfully, technology enabled us to adjust through virtual training. As in-person training has started creeping back and I’ve ventured back out on the road, I’ve paid attention to the differences in virtual and in-person training.

The materials are the same. The instructors are the same. There is one major difference, though. The greatest benefit I observe during in-person training is how the participants learn from each other. You all, the participants, are the hidden benefit of in-person training.

Let’s reflect a bit, shall we?

It’s hard to believe how things have changed since the beginning of 2020. From January to mid-March, I taught FELTG courses in Sacramento, Calif.; Washington, D.C.; Fort Collins, Colo.; Raleigh, N.C.; Natchitoches, La.; Springfield, Ill.; and Phoenix, Ariz. I taught the occasional virtual webinar, but our typical training sessions were in person. And then the pandemic hit ….

Initially, agencies postponed classes “until the pandemic ended” – you know, for a few weeks. Yeah, that didn’t happen. Weeks turned into months, months into years.

I’m sure you all, like me, remember hearing medical professionals opine that the pandemic and its associated isolation and masking requirements would continue at least until 2022. We did not think that could possibly happen. How would we survive?

Well, we did. We adapted. The world turned virtual. Workplaces changed. Training changed.

What didn’t change was the need for FELTG training. Management still had to deal with unions, poor performers, misconduct, investigations, and EEO complaints. Virtual training worked. It still does.

Virtual training has the chat function. Participants can share anecdotes. They can ask questions. They can even un-mute and address the group. In my experience, however, the virtual world does not lend itself to the kind of sharing that occurs during in-person training.

Not only do participants learn from each other – sometimes things as basic as who to contact about a performance issue or reasonable accommodation request – but I often learn from the participants. People are more comfortable sharing in person than virtually. Even the hourly breaks (which may run longer than 10 minutes during in-person training because people enjoy chatting and connecting) provide an opportunity for brainstorming, questioning, and sharing.

More and more private sector CEOs are seeking to bring people back in the workplace to enhance idea sharing and collaboration. Workers are reluctant because they like the convenience of remote work.

Remote and hybrid work are beneficial, and they are here to stay. However, when it comes to training, agencies should give serious consideration to more in-person training. It really benefits the participants. During a recent virtual training, some participants commented, “Gee, it would be nice to have this training in person.”

Don’t get me wrong. There is great value to virtual training. How lucky we are that Zoom, Teams, and WebEx exist. But in-person training allows the participants to learn not just from the instructor, but from each other.

So, there you have it. Something to think about in 2023. You are the secret benefit of in-person training. It’s an option again. And that’s Good News! Boehm@FELTG.com