In-Office Thursdays Only? Some Employees Really Do Need Specific Telework Days

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By Deborah J. Hopkins, January 17, 2023

If your agency has an employee who, as a reasonable accommodation (RA), teleworks three days a week, and reports to the office one day a week, you might think the agency has the right to choose which day the employee reports to the office. And, depending on the scenario, you might be right. But you might not.

Each RA case requires an individualized analysis. Failure to follow the process could result in a finding against the agency – plus potential exacerbation of the employee’s medical conditions.

In a recent EEOC decision, the complainant, who had fibromyalgia, fibromyoma, chronic pain, cancer in remission, and arthritis, received the below accommodations:

  • A maxiflex work schedule;
  • Three days of telework per week (Monday, Tuesday, and Wednesday);
  • A requirement to report to the office on Thursdays; and
  • Fridays off.

On Nov. 21, 2019, the complainant’s supervisor met with her and with the Reasonable Accommodation Coordinator (RAC) about revising the existing RA to:

  • A compressed work schedule (10-hour days Monday – Thursday);
  • Three days of telework per week (Monday, Tuesday, and Thursday);
  • A requirement to report to the office on Wednesdays; and
  • Fridays off.

The complainant objected, explaining the change in schedule was not compatible with her medical limitations. The RAC sought additional medical documentation to support the complainant’s claim that a Thursday “in-office” day was part of her medical treatment plan.

According to the case, “The RAC’s questions included: ‘Is [Complainant] capable of reporting to the office on Wednesdays? If not, provide the specific medical need (with an explanation) that does not allow her to report to the office on this day.’”

The complainant’s physician responded on Dec. 5, 2019, informing the agency the complainant’s medical treatment plan included telework three days a week with Thursday, specifically, as her weekly “in-office” day:

The letter explained why a Thursday “in-office” day benefitted complainant in terms of managing the symptoms of her disabilities and explained how a change to her “in-office day would negatively impact her medi[c]al treatment plan.” The RAC deemed the reference to a medical treatment plan to be too vague, so around Dec. 26, 2019, the RAC sent the complainant’s physician another information request to include a “specific medical reason/need (i.e. include the specific type of medical treatment in your medical plan) that prevents [Complainant] from reporting to the office on Wednesdays.”

On Jan. 20, 2020, the complainant’s physician again responded, informing the agency the treatment plan included medication, therapy, and mandatory extended continuous periods of rest on Fridays, Saturdays, and Sundays, in order to mitigate the complainant’s symptoms.

The documentation further stated the change to Wednesdays “is not advisable” and “would be detrimental to [Complainant’s] treatment and health” because if the schedule changed the complainant would:

  • Experience medical challenges managing the symptom[s] and side effects of her medication;
  • Not [be] able to have the extended period of rest without missing work;
  • Encounter negative impacts managing her pain;
  • Experience intensification in her sleep disturbance, fatigue; and
  • See increases in additional side effects from her medication.

The RAC still deemed the physician’s response insufficient, so she again sent the Dec. 26 request for information about the specific type of treatment that would prevent the complainant from reporting on Wednesdays; neither the physician nor the complainant provided further documentation.

On Mar. 9, 2020, the complainant received a notice from her supervisor, informing her that her existing RA had been modified and that her in-office day would be Wednesdays beginning Mar. 16. The complainant requested the agency reconsider but was denied, so she appealed to the EEOC.

On appeal, the EEOC found that the Dec. 5, 2019, response from the physician “was sufficient to support Complainant maintaining Thursday as her ‘in office’ day” because the physician provided specific rationale, stating the existing treatment plan “has decreased the severity of [Complainant’s] symptoms, stabilized her condition and delayed progression of her medical condition,” and warned that a change in schedule would be “detrimental to her condition, mobility and treatment.”

The Commission also disagreed with the supervisor and RAC’s assessment that the medical documentation supported that the complainant could change her “in-office” day to Wednesday.

While the agency is permitted to ultimately choose an employee’s accommodation, the RA must be effective.

In this case, the Commission said that management’s insistence on moving the in-office day to Wednesday, which resulted in the complainant having to work the next day rather than rest, rendered her reasonable accommodation “far less effective.” In addition, when the supervisor and RAC changed the complainant’s work schedule from maxiflex to compressed, it became impossible for the complainant to “adjust her lunch break to use it in conjunction with her leave for medical appointments or adjust her start or end time to accommodate medical appointments,” which also rendered the accommodation less effective.

The Commission closed by stating, “By modifying Complainant’s long-held accommodations to make them less effective, we conclude the Agency violated its accommodation duties under the Rehabilitation Act.” Cheryl L. v. Treasury, EEOC Appeal No. 2021001710 (Sept. 26, 2022).

For more on this topic, join FELTG on Feb. 16 for the two-hour virtual training Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency. Hopkins@FELTG.com

And Now A Word With … EEOC Chief AJ Regina Stephens

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By Dan Gephart, January 3, 2022

Regina Stephens was named EEOC’s Chief Administrative Judge in October 2022. It’s a full circle return. Her path to becoming Chief AJ began in Washington, DC, where she worked as an appellate attorney in the Office of Review and Appeals, now the Office of Federal Operations.

Looking back, Stephens (pictured, at right), can’t imagine a better way to start her Federal sector career.

“It was certainly helpful to begin from an appellate perspective – examining the work of federal agency investigations, the EEOC administrative judge and the federal agency’s final action – my introduction to this work presented various party perspectives from the start,” Stephens said. “I am grateful for such an introduction to employment law. In many ways, it shaped my career as an administrative judge.”

After several years in DC, Stephens moved to North Carolina where she became an administrative judge.

“The federal sector community was, essentially, my coworkers from other agencies,” she said. “The administrative process was created for all of us (federal government employees) to enjoy a model workplace free of discrimination. These roles, as well as other private sector roles, with their challenges and successes, have provided me with the tools to be an effective leader.”

We caught up with Stephens late last year.

DG: You mentioned model workplaces. Where do agencies need to improve most in order to reach that goal?

RS: Retaliation continues to plague both our private sector companies as well as the federal government. It remains prevalent because of lack of understanding and tolerance. This form of discrimination is an area where agencies should provide and mandate training. In addition, we must hold wrongdoers accountable for their actions and allow room for positive change in our work communities.

DG: What will your top priority be as Chief Administrative Judge?

RS: It is my forever top priority to continue to improve every aspect of this administrative process for our federal sector community. Careful attention has been made to continuous legal education for our staff as well as our stakeholders. Many of our administrative judges participate in outreach activities in this regard. In addition, we continue to adjust our case management systems in order to provide effective and efficient service to our federal employees and applicants.

DG: What needs to be done to ensure consistency in procedure and decision-making among the agency’s administrative judges? 

RS: For several years, the EEOC has worked diligently to require consistency with respect to procedure and processing with training and quality reviews. These efforts are apparent with our current staff and in our resolution of thousands of cases every year.

DG: What are the most common mistakes you see agencies or complainants make when presenting a case? 

RS: It is essential for a party to understand their own case. Oftentimes, an individual believes that simply recounting what happened to them is sufficient to prevail. This is a frequent misstep. Individuals should be clear in their communications on what happened, but they must prove that event is discriminatory. To satisfy this proof, one must understand what is required. Resources are available on EEOC’s website. If the public has more questions or looking for more information, they can write us.

DG: Is it an effective tool to require offenders receive EEO training as part of a decision?

RS:  EEO training can be an effective tool if properly executed. Agencies should carefully review decisions and understand the behavior they are trying to correct. Secondly, staff should be trained by experienced and knowledgeable personnel.

[Editor’s note: FELTG provides EEO-ordered training, as well as numerous off-the-shelf training courses on Federal sector EEO topics. Email info@FELTG.com or check out the FELTG website for more information.] Gephart@FELTG.com

Ask FELTG: What do OPM’s new regulations say about clean record agreements?

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December 14, 2022

OPM’s new regulations on 5 CFR parts 432 and 752, which went into effect Dec. 12, 2022, removed the 2020 regulations’ prohibition on clean record agreements. Agencies are once again free to use clean record settlements. This was probably the most contested portion of the 2020 regulations, which had incorporated President Trump’s E.O. 13839 prohibitions on clean record settlements.

OPM explains that clean record agreements “should be an option for agencies to resolve informal and formal complaints when the agency deems it is in the best interests of effective and efficient management to achieve the agency’s mission,” and that clean record agreements provide agencies with an important tool and flexibility, consistent with the policies of President Biden’s E.O. 14003, Protecting the Federal Workforce.

OPM identified some of the disadvantages to prohibiting clean record agreements:

  • Reduced likelihood of parties reaching a mutually agreeable resolution of informal or formal complaints
  • Increase of costly litigation and arbitration
  • Crowding of the dockets of third-party investigators, mediators, and adjudicators
  • Cases languishing impact the agency’s credibility, supervisor morale, and efficient execution of the agency’s mission

OPM’s rescission does not take a position on whether any particular case should be settled, as it acknowledges that settlements, which through lessening a penalty or permitting resignation, may in certain circumstances:

  • Lessen the risk of outright reversal with its high costs without benefit, or
  • May adversely affect governmental interests.

Agencies are still required to be truthful to Federal investigators in connection with background investigations, and may not agree to withhold information about an individual’s departure from the agency. In addition, the requirement for agencies to be truthful applies also to suitability determinations and other inquiries related to vetting for personnel security.

The rescission of clean record restrictions applies to

  • 432.108 (performance-based actions)
  • 752.104 (discipline for whistleblower retaliation)
  • 752.203 (short suspensions)
  • 752.407 (appealable actions)
  • 752.607 (SES adverse actions)

If you missed our recent webinar Implementing New OPM Regs for More Effective Disciplinary and Performance Actions, the recording is available in the FELTG store. Info@FELTG.com

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Year in Review: Top FELTG Newsletter Stories of 2022

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By Dan Gephart, December 13, 2022

Happy Holidays FELTG Nation! Welcome to the fourth annual year-end News Flash, where we unveil the most popular FELTG newsletter stories (based on the number of reads and forwards) of the previous 12 months.

The 2021 Year in Review was strewn with stories on vaccine mandates and other pandemic challenges. Even with my subpar math skills, I can figure out how many stories on those topics made it into this year’s top story list.

Zero.

That’s right. Pandemic-related issues haven’t disappeared. And our COVID-19 stories and guidance continued to receive a lot of eyeballs in recent months. However, pandemic-related stories were not among the top two most read and forwarded articles in any specific month this year. What were people reading then?

Considering this is the first time we’ve compiled the top story roundup with a full MSPB in place, it’s not surprising that a majority of the most-read stories involved new MSPB decisions. Since the MPSB returned to deciding cases, FELTG has been at the forefront of reading and interpreting them for Federal practitioners.

We continue to hold up our end of this bargain. Join FELTG President Deborah Hopkins on Feb. 14 for latest session of Back On Board: Keeping Up With the New MSPB, our quarterly two-hour review of the newest and most critical Board decisions.

Beyond new MSPB guidance, people read articles on harassment, union meetings, and much more. Let’s take a look back month by month.

January

If you’ve ever been in a class taught by FELTG Instructor Ann Boehm, you’ve heard her refer to the Office of Folklore, or as it’s better known – OOF! OK, so it’s not a real office. Ann uses OOF to explain how bad information gets circulated as the truth. It happens a lot more than you’d think (or hope).

Here’s a specific example. We hear from many professionals who use the following equation to distinguish between performance and conduct cases: Can’t = performance and won’t = conduct. Ann tackles this federal employment law version of fake news in our most-read article of January. As Ann conveyed so clearly: Instead of can’t versus won’t, rely on the performance plan’s critical elements when deciding between a performance or misconduct action.

Speaking of performance, if your agency’s performance year coincides with the calendar year, you are likely working on performance narratives now. If that’s the case, FELTG Senior Instructor Barbara Haga has a clear message for you: It’s Time to Do Better. That message clearly resonated with readers.

February

According to a very unscientific poll (that means it’s my guess), February generated more shrieks of “WTF” in FELTG Nation than any other month.

People read about the ambulance company that failed to respond properly to a harassment allegation. Quick recap: An EMT was fired fewer than 24 hours after she received an unwelcome picture of a sexual nature from a coworker. Although it’s an older case that doesn’t involve a Federal agency, the story offers a lesson to Feds about the importance of investigations.

Meanwhile, Barbara’s tale of a staffing specialist hired AFTER recently facing a suspension AND being the subject of a sexual harassment investigation at his previous agency was the second most-read article.

March

So, you wonder: How did that staffing specialist get hired? It turns out, he lied on his SF-85Ps. You think that’s ridiculous? In Barbara’s March follow-up column, we find out why he lied. Meanwhile, Ann Boehm provided some Good News for agencies when she answered the question: Does the union get to attend every meeting between me and an individual bargaining unit employee? Ann answers: “It depends, probably not as often as bargaining unit employees think.” She laid out specific guidance on when the union does have that right, per Weingarten meetings. No wonder it was most read story of the month.

April

It’s difficult to capture in writing the excitement at FELTG Headquarters in April. It wasn’t the
beginning of the baseball season or the arrival of spring. We had MSPB cases once again!

In this most-read article of April, Deb shared three lessons learned from the new MSPB’s decisions. Ann’s Good News: The Union Doesn’t Get to Attend Every Meeting, this time with the focus on formal meetings, was a close second.

May
If there is any theme running through this year’s top stories so far, it’s that 1) Barbara Haga writes a lot of stories about poor-performing or misbehaving officials who should really know better; and 2) you all love to read about them. You met the lying staff specialist in February and March and, in May, Barbara introduced you to a Chief Operating Officer who was removed for conduct unbecoming – the most-read story of May. [Hornsby v. FHFA is an important decision. Read Deb’s takeaways.]

On the flip side, we don’t hear much about supervisors being harassed by employees. Have you ever thought about filing an EEO complaint against an employee? Can you? In May’s second most popular story, Deb confirms that supervisors can file an EEO complaint. But it’s much quicker and more effective to handle the harassment as a conduct issue. In the particular case discussed in Deb’s story, a supervisor was harassed because of his sexual orientation.

June

Longtime residents of FELTG Nation are well aware of the trio of 2010 Board decisions on comparator employees that we dubbed the “Terrible Trilogy.” We preached again and again that these misguided decisions put too large of a burden on agencies to be consistent with agency-wide discipline. Twelve years later, the MSPB came around to the FELTG way with a decision that offered clear, specific, and reasoned guidance on who counts as a comparator employee in an adverse action under Douglas factor 6. Deb’s story on this important new case was our most-read article in June.

Not all cases can be groundbreaking, precedential decisions. But even relatively unremarkable, non-precedential MSPB decisions can teach or reaffirm best practices everyone should know, as FELTG Past President Bill Wiley discussed.

July

When it comes to whistleblowing cases, the MSPB has tended to interpret “covered personnel action” quite broadly. Not so anymore. Ann Boehm shares the Good News about a recent Board decision, reminding us that the employee has the burden to show a “significant change” in duties, responsibilities, or working conditions. It was the most-read story of July.

Meanwhile, Deb addressed the workplace struggle (for some) with pronouns – an important piece of the gender identity equation. Refusal to use an employee’s preferred pronoun, or name, has been problematic for agencies in recent years, not just from a liability perspective, but because of the impact of the harassment on the complainants.

August

Longtime Board observer Bill Wiley has been very impressed with the work of the new MSPB. Granted, like most practitioners, Bill was glad to see anything coming out of MSPB HQ after a five-year drought of decisions. Still, the occasionally cantankerous FELTG founder called the Board’s legal analyses “well-based and consistent with common sense, upholding much and modifying where necessary.”

But …

(You knew a but was coming.)

Bill found issue with one MSPB decision involving an employee initially removed for conduct unbecoming. The case gets much more complicated than that, and it involves a discussion of who gets to determine whether an employee is probationary. The most-read story of August definitely deserves another look.

As most of you know, FELTG not only offers open enrollment training, but we can come to your agency (onsite or virtually) to provide training for your team.

[I’m interrupting myself here to let you know: If you’re interested in this kind of training, contact me at Gephart@FELTG.com.]

We received a lot of inquiries for agency-specific training last year on the topic of harassment. But we received an interesting request along with many of those inquiries: Can you please also cover what is not harassment, especially when it comes to supervisory actions?

We’re talking setting deadlines. Creating a telework schedule. Enforcing a dress code. Providing performance feedback. As long as these supervisory actions are taken reasonably, they are not harassment. Can a supervisor cross the line from effectively supervising employees to creating a hostile work environment? Yes, it’s possible. Deb provides the clear distinction for what is and isn’t harassment.

September

Sleeping on the job. Conducting personal business while at work. Work remotely even though you’re required the employee to return to the physical workplace. Let me spell it out for you: A-W-O-L. Yes, it is possible to be Absent Without Leave even if you’re at work. And that includes working at a remote site.

Many of you worried when employees told you that they did not want to return to the physical workplace. It was a big enough concern to make this our top-read story of September.

Also in September, Deb shared an ugly case of harassment based on disability. A high-level supervisor mimicked an employee with a visible disability in a meeting with all of his coworkers. Here’s the takeaway for all agencies: Take prompt, corrective, and effective action against harassment.

October

During a training session, an attendee told Ann that her agency attorneys suggest “we always advise employees of their Weingarten right.” Ann was aghast. So, she wrote a Good News column explaining to readers the statutory language makes it crystal clear that the agency representative does not have any such obligation.

FELTG has been around for more than 20 years now. Since the beginning, we’ve told agency reps and supervisors that if you’re charging misconduct that begins with an F word (no, not F%@! for F%@! sake – we’re talking falsification, fraud, false ____, etc.), you better make sure you have evidence that the employee intentionally provided false information. There are numerous case law examples out there, and Deb shared a new case example from the MSPB in her popular October article.

November

Agencies have a right to expect a higher standard of conduct from officials who occupy positions of trust and responsibility. You know, supervisors, agency leaders, law enforcement officers, Senior Executive Service members. They should all know better, right? Well, you can add another category to that list — HR professionals.

In our top story of November, Deb wrote about an MSPB precedential decision involving a GS-9 supervisory specialist, who engaged in conduct, such as:

  • Calling subordinates “sexy” and “beautiful.”
  • Commenting on what a subordinate was wearing, including “you look nice,” and you “should wear dresses more often because [she] has nice legs.”
  • Leering.
  • Staring at a subordinate’s rear end.
  • Continuing to make comments even after the subordinates told him he had crossed a line.

An accident occurs at work, and the employee seeks workers’ compensation. But you (and others) think the employee was high or drunk when the accident occurred. An easy call, right – order a drug test, then decline the workers’ comp? Not so fast, guest columnist Frank Ferreri warns in our second most-read story of the month. Frank’s article is filled with case examples that provide a lot of insight.

December

When an agency loses a case, it’s more likely to be because of due process errors – and not the evidence. No wonder readers flocked to Deb’s story this month that offered due process lessons from three recent MSPB decisions.

FELTG Senior Instructor Barbara Haga has taught a lot of training sessions on the topic of reference checks, with a focus on making sure those doing the hiring have all the information they need from the applicants and previous employers. So, you can probably guess Barbara’s opinion on OPM’s newly released guidelines allowing agencies to use clean record agreements again. As Barbara said, you can use clean record agreements. But should you?

I’m not much of a prognosticator, but I’m sure MSPB decisions will make up a nice chunk of 2023’s Year in Review. But there will also be other issues that we can’t foresee. Regardless of the issue, we can guarantee that FELTG will be there to help you steer through any employment law challenges with the most up-to-date and engaging guidance – whether via web stories or in training classrooms.

Happy holidays and best wishes for a great 2023. Gephart@FELTG.com

Due Process Lessons From Three New MSPB Cases

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By Deborah Hopkins, December 6, 2022

As we continue MSPB Law Week, I thought I’d share a few of the new Board’s decisions on appellant allegations of due process violations. From my read, the Board seems to be closely following four decades of precedent in its decisions.

Lesson 1: A refusal to extend the response period is not a due process violation.

In proposed removals and other appealable actions, appellants are entitled to a statutory minimum of 7 calendar days to respond to the deciding official (DO) under 5 U.S.C. § 7513(b)(1). In a recent case, the agency’s notice of proposed removal gave the appellant a full 14 days to submit any written or oral responses to the DO. The appellant requested an extension on this 14-day timeline, which the agency denied.

Nevertheless, the appellant sent a written response that the DO received after the 14-day window. According to the case, the DO had already decided that the removal action was warranted, yet she still considered the appellant’s late-filed response. However, it did not change her decision. At that point, because the 14 days has passed, she was under no obligation to consider the appellant’s response. However, having done so, she effectively negated his due process argument. Jones v. VA, CH-0752-15-0286-I-1 (Jul. 21, 2022)(NP).

Lesson 2: Providing fewer than 7 days to respond is not automatically a due process violation.

In this case, the agency proposed a 14-day suspension based on two charges and provided the appellant with 7 days to respond. A few days later, the agency amended the proposal notice to add a third charge and gave the appellant an additional 4 days to respond. Although the 4-day response period was fewer than the 7 days required by statute, “it was not unreasonably short.” Moreover, the DO considered the supplemental written response the appellant provided the day after the 4-day deadline. Because the appellant received notice of the action against her, an explanation of the reasons for the action, and an opportunity to present her response, there was no due process violation.

Another interesting takeaway from this case: The agency did not schedule an oral reply, and the appellant raised a harmful error affirmative defense. The Board held that appellant did not show the lack of scheduling an oral reply constituted harmful procedural error because the appellant was still provided the opportunity to present her side of the case in writing.

For those astute readers wondering how a 14-day suspension ended up before the Board in the first place, the agency split the suspension into two portions to fit around the employee’s 90-day detail to another office and, due to administrative error, the two periods of suspension combined for a total of 15 calendar days, thus constituting an appealable action. Cargile v. Army, CH-0752-14-0056-I-2, CH-752S-13-2680-I-2 (Oct. 3, 2022)(NP).

Lesson 3: Credibility matters in allegations of due process violations.

In this case, the appellant claimed her due process rights were violated on the day she received the notice of proposed removal. On that day, the DO spoke to the appellant’s former coworker and indicated that the agency had terminated the appellant. The appellant claimed the alleged conversation demonstrated that “her subsequent response to the proposed removal was meaningless, rather than meaningful.”

The agency disputed the nature of the conversation and due process claim. According to a sworn statement, the DO spoke with three individuals on the day the appellant received the proposed removal. The DO spoke to a Human Resources point of contact, the appellant’s former Engineering Division Chief, and a former subordinate of the DO who was also friends with the appellant. The DO indicated he spoke to HR about the disciplinary process and the DO’s specific responsibilities, “including those related to the appellant’s due process rights.”

A conflict arose in descriptions of the other two conversations:

  • “According to that former Engineering Division Chief, he specifically remembered asking if the appellant was fired, and the deciding official responding in the negative, instead indicating that the appellant was being given the opportunity to present her case.”
  • “According to that former subordinate of the deciding official and friend of the appellant, the deciding official called him, indicating that the appellant had been terminated earlier that day.”

After weighing the AJ’s credibility determinations, the Board agreed with the AJ that the DO’s version of events was more credible. It denied the appellant’s due process claim. Conde v. DHS, DC-0752-15-1059-I-1 (Nov. 10, 2022)(NP). Hopkins@FELTG.com

 

3 Reasons Why Member Grundmann is Optimistic About FLRA’s Future

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By Dan Gephart, December 6, 2022

As she nears completion of the first six months of her tenure as a Federal Labor Relations Authority member, Susan Tsui Grundmann is very optimistic about the agency. We caught up with Member Grundmann a couple of times over the past several weeks, and she was eager to discuss the issues that have her enthused about the FLRA’s direction.

  1. Formalization of a relationship with FLRA’s internal union.
  2. Re-establishment of the Collaboration and Alternative Dispute Resolution Office (CADRO).
  3. FLRA’s return to the top 10 of the Best Small Agencies to Work list.

The FLRA union

“We meet on a regular basis,” Grundmann said about the agency and its union. “We have to lead by example. The people on the ground have great ideas. Look to the people who do the work as well as those who do it through other people. Give everyone a voice at the table.”

The agency and the union are working closely on returning employees to the physical workplace. They agreed to a return after 14 straight days with a reduction in transmission rates recorded in all regions followed by a 30-day notice provision. During our conversation with FLRA Chairman Ernest DuBester back in April, the hope was for a mid-May return. Months later, the virus still has different plans.

CADRO
Speaking of Chair DuBester, one of his first acts was to reinstate CADRO, which once again is led by Michael Wolf.

“CADRO is back,” Grundmann said. “They have an astonishing resolution rate of nearly 100 percent in negotiability appeals. Now when you file a ULP, you have an opportunity to go to CADRO.”

During the 18-month period since CADRO was restored in 2021, it has fully resolved 35 negotiability petitions containing 414 language disputes, according to Wolf. A 36th case was partially resolved.

As of Oct. 31, CADRO has handled 127 ULP cases. So far, per Wolf, only three cases required a hearing and 11 were resolved on motions for summary judgment. The rest of the 113 cases were fully resolved through the settlement conference process.  That’s a success rate just under 90 percent.

A best place to work

In 2020, the agency ranked 23rd among small-size agencies with a score of 64.6. The scores are calculated based on three questions in the Federal Employee Viewpoint Survey (FEVS):

  • I recommend my organization as a good place to work.
  • Considering everything, how satisfied are you with your job?
  • Considering everything, how satisfied are you with your organization?

In 2021, that score jumped to 78.4, vaulting the agency into 7th place in the list just behind the Farm Credit Administration. Why the sudden jump?

“Our employees have always had a strong sense of purpose towards the agency mission, which is to protect rights and facilitate stable relationships among Federal agencies, labor organizations, and employees while advancing an effective and efficient government through the administration of the Federal Service Labor-Management Relations Statute,” Grundmann said.  “Because we didn’t have a General Counsel for several years, ULP complaints couldn’t be issued and regional employees couldn’t do a significant part of their jobs.  I think the President’s appointment of Charlotte Dye as Acting General Counsel, which enabled this important work to start up again, likely had a positive effect on employees’ morale.

“Additionally, as an agency, we recommitted to our mission by redeveloping a robust training and education program and restoring CADRO.  We also demonstrated to our employees that we will engage with them by once again recognizing their exclusive representative and re-establishing our own labor-management forum.”

Grundmann thinks it’s important not just for FLRA employees, but for all Federal employees, that FLRA is viewed as a good place to work.

“If we are in the business of addressing issues between agencies, its unions, and its employees, we should be viewed by our own employees as embodying the core principles that the employee viewpoint survey measures: employee engagement and satisfaction,” she said.

Gephart@FELTG.com

Concerned About Employee Mental Wellness? Here are Some Solutions

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By Shana Palmieri, LCSW, December 6, 2022

The ongoing impact of the pandemic is clear: There are drastic increases in the rates of anxiety and depression and a growing need for access to behavioral health treatment. Prevalence rates of anxiety and depression rose 50 percent and 44 percent, respectively, according to an article in Translational Behavioral Medicine.

This rate was six times higher than in the pre-pandemic year of 2019. The most significant impact was found for those aged 18 to 29, with rates of anxiety and depression jumping to 65 percent and 61 percent, respectively. Also, rates of stress are increasing for Americans. The American Psychological Association reports the top sources of stress include rising prices and inflation (87 percent), supply chain issues (81 percent), and global uncertainty (81 percent). Stress about money is the highest it has been since 2015.

[Editor’s note: Shana will present the 60-minute webinar Grappling with Employee Stress in the Workplace: Improving Performance and Morale in Your Agency on March 23.]

In alignment with the increasing rates of stress and mental health symptoms, there is a critical workforce shortage in healthcare. The country is on track to be short 31,109 psychiatrists within a few years, per an AAMCNews blog post. The clinical workforce shortage was well-documented throughout the pandemic, and we continue to see healthcare staff leave the field altogether.

The average hospital turnover rate is now 25.9 percent – an increase of 6.5 percent, according to the 2022 NSI National Healthcare Retention & RN Staffing Report. 

The American Psychological Association found that a third of individuals reporting mental health symptoms during the pandemic who did not receive treatment believed having treatment would have been helpful. Forty-five percent of these individuals reported access to care (including location, provider availability and timing) prevented them from accessing treatment. Twenty-seven percent of individuals reported the thought of reaching out and trying to find help was too overwhelming.

The impact of rising rates of mental health symptoms and increasing reports of significant stress levels has a critical impact on employers in terms of absenteeism, productivity, and office morale.  Creating a workplace environment that promotes mental wellness and eliminates barriers to accessing behavioral health treatment provides great benefit to the employees and the employer.

Even given the significant challenges, there are a variety of solutions employers can integrate into the workplace as solutions.

Access to care

Finding a behavioral health provider through an employer’s health plan can be tedious and very challenging.  Individuals are often left with a list of psychiatrists and therapists and start calling and leaving messages trying to find someone to at a minimum to return their call and hopefully with a call back and open availability. For an individual already suffering and feeling overwhelmed, trying to navigate this process can be extremely frustrating.

Employers can help in one of two ways:

  • They can provide better resources directly to their employees to help them find a provider.
  • They can contract with a telehealth company in an agreement with specific access to care expectations to ensure their employees can receive timely access to behavioral health treatment.

Contracting with a national telehealth provider that offers access to outpatient therapists and psychiatrists can greatly improve the ease and length of time for employees seeking providers. Platforms, such as Ginger, Lyra Health, and Spring Health, charge insurance premiums plus a per member fee. Array Behavioral Health does not have per-member fees.

Employers can also provide resources directly to their employees. For example, employees can schedule an appointment on the Array Behavioral Health website, find providers through Psychology Today, or access options to book online appointments through Zocdoc.

Stress and mental wellness

Employers seeking an overall approach to improving mental wellness and reducing employee stress levels can consider a variety of resources and programs.

Employers may want to offer employees a mindfulness-based stress reduction program (MSBR). MSBR is an eight-week evidence-based progress secular mindfulness-based training to reduce symptoms of stress, anxiety, depression, and pain. There are also a collection of digital tools available to offer employees such as Calm for Business and Headspace for Work.

Improving access is one critical aspect for employers to address the overall mental wellness of their workforce.  It is also important to maintain a commitment to employee wellness through the workplace culture and environment. Employers’ dedication to employee wellness will lead to a more productive, healthy, and happy workforce.

Important note: In instances of a psychiatric crisis, including suicidal thoughts or thoughts to harm others, there is the 988 mental health crisis line and 911 to access more immediate and emergency assistance.

Info@FELTG.com

The Good News: A Letter to Santa 2022

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By Ann Boehm, December 6, 2022

Dear Santa:

I hope you and Mrs. Claus are doing well. Has inflation hit the North Pole? Kind of crazy how it’s hit everyone this year!

Is the staff recovering from the pandemic? Any mass resignations or “quiet quitting” by the elves? I’m sure you’ve always had a great work-life balance up there, but I know it must be tough to do that given your hard and fast deadline every year!

My Christmas list this year is pretty short and in no particular order (although the last one may be the one, I want most!). I think I’ve been very good, so I hope I get my Christmas wishes!

  1. Better recognition by agencies of bad supervisors.

Santa, we here at FELTG teach a lot of classes intended to help supervisors understand how to handle problem employees. I think sometimes agencies forget that there are bad supervisors, and those bad supervisors can even create problem employees. It would be great if agencies could take a close look at their managers and supervisors to see if they are in the good column or bad column.

Signs to look for: excessive turnover in the workplace, frequent grievances or EEO complaints, and generally unhappy staff. If those signs are present, the problem may be the supervisor and not the employees.

  1. Better employee understanding of what a hostile work environment really is.

Santa, too many employees think that being unhappy at work equates to a hostile work environment. That’s just not true. Harassment is very real, sadly, but the EEOC cannot get to the legitimate cases quickly because it has to deal with lots of non-meritorious hostile work environment cases that bog down the whole system.

So how can you help, Santa? Employees need to know that a hostile work environment is unwelcome verbal or physical conduct; based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (40 and over), disability, or genetic information; that is so severe or pervasive to alter the terms and conditions of employment.

  1. Better collective bargaining negotiating by agencies to avoid agreeing to collective bargaining agreement (CBA) language that gives the union more rights than the labor statute requires.

Santa, in 1978, Congress passed the very detailed Federal Service Labor-Management Relations Statute. Bargaining unit employees and their unions have lots of rights through the statutory language. It always makes me a bit sad when I see a provision in a CBA that gives the union and employees more rights than the statute requires. For example, requiring agency investigators to tell bargaining unit employees about their Weingarten rights is not a statutory requirement, but the requirement is in far too many bargaining agreements.

  1. Better efforts by unions and agencies to sincerely work together and put the public interest above their individual interests.

Santa, sometimes unions and agencies act like toddlers in playroom:  They each hold tight to their “toys” and refuse to share. Good preschool teachers help little kids understand the value of sharing. You are pretty good with the whole “toy” thing. Maybe you can help unions and agencies figure out that it’s better to put individual interests aside and work toward a common ground that results in the best service to the public.

  1. More in-person training.

Santa, virtual training is working well, but in-person training is my favorite. As we continue to emerge from the crazy COVID world, I hope that we get back to more in-person training. I asked for this last year, and we did have more in-person training this year than in 2020 and 2021. Employees seem to be enjoying the interactions that in-person training provides.

  1. A pony.

Santa, I’m not getting any younger. I’m going to keep asking …

Merry Christmas! Happy Holidays! Happy New Year!  Ann. Boehm@FELTG.com

Clean Record Agreements: You Can Use Them Now, But Should You?

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By Barbara Haga, December 6, 2022

With issuance of OPM’s final regulations covering Parts 315, 432, and 752 on Nov. 10, 2022 (87 FR 67765), the prohibition on clean record agreements will end.  Effective Dec. 12, you are free to hide the dirty laundry to your heart’s content. With this new regulation, you can agree to remove the information and let the employee – who, by the way, was so bad you were going through the time, paper, and process to fire or demote him or her – walk out the door with a record that says he or she was fine.  You can do it, but to me the important question is: Should you do it?

Under the microscope

Some may think the Trump EO 13839 prohibition on these agreements came out of the blue. That is not the case. The MSPB has been talking about issues related to these agreements for years. The Federal Circuit has said some not very favorable things about them for 25 years. In Pagan v. VA, 170 F.3d 1368, (Fed. Cir. 1999), the Fed Circuit repeated what they said earlier:

Settlement agreements may serve a useful purpose in terminating disputes without the necessity for further administrative or judicial proceedings. The incorporation into such agreements of a “clean record” requirement has proven to be a source of problems — problems that necessitate the very administrative or judicial proceedings sought to be avoided. As a result, this court has expressed its concern with agency settlement agreements that allow an unsatisfactory employee to resign in exchange for a personnel record clear of all charges and adverse actions. See Thomas v. Department of Housing & Urban Dev., 124 F.3d 1439, 1442 (Fed. Cir. 1997) (“It may well be that it is virtually impossible for agencies to ensure that settlement agreements such as this. . .can be performed to the letter … Perhaps as a matter of sound governmental administration such agency agreements should be prohibited.”). Indeed, such agreements invite trouble. The employee expects, perhaps unrealistically, that with a “clean record” potential employers will be unable to find out about adverse actions taken by the former employer. The former employer, when asked, must either outright lie, or attempt some artful evasion which, because other employers now recognize what these agencies do, in fact fools no one.

The decision went on to say:

Although reasonable settlement of employment disputes is commendable, when the agency is required to give no information or an agreed-upon “neutral” reference, “the practice of one government agency palming off an unacceptable employee on another government agency by withholding material evidence concerning the employee’s conduct hardly serves the public interest.” Holmes v. Department of Veterans Affairs, 58 F.3d 628, 634 (Fed. Cir. 1995).

Even OPM wasn’t telling agencies they should do it. In response to those who opposed lifting the ban, OPM stated they weren’t saying agencies should do it, just that they were not prohibited from doing it.

We are simply rescinding a rigid regulation that, upon reflection and further consideration, we deem impracticable, unrealistic, and unhelpful because it absolutely prohibits agencies from altering or removing information about performance or misconduct as a condition to resolve or settle a complaint or challenge to a personnel action, even where doing so furthers the best interests of an effective and efficient Government and the interests, voluntarily expressed, of both parties to personnel litigation. OPM’s rescission does not take a position on whether any particular case should be settled, and does not prohibit settlements, which through lessening a penalty or permitting resignation, may in certain circumstances lessen the risk of outright reversal with its high costs without benefit, or may otherwise adversely affect governmental interests.

Practical effect

I deliver training sessions on conducting effective interviews and reference checks. The course includes a segment on asking applicants direct and pointed questions about their experience and another segment aimed at helping managers ask the same types of questions of past employers.  As a reference, I use the September 2005 MSPB report Reference Checking in Federal Hiring:  Making the Call.  The report focuses on hiring issues stemming from managers not fully or effectively checking out applicants.

[Editor’s note: Contact Dan Gephart at Gephart@FELTG.com to bring Barbara and this course to your agency.]

Interestingly, that report contains a discussion of the problem of getting good information on candidates who have clean record agreements. That report cites the same information from the Federal Circuit that I included earlier in this article.  The Board wrote that in spite of the problems with such agreements, they continue (and likely will begin again in a few days).

Where does that leave the supervisor who is trying to do a good job and fully vet a potential applicant?  Sometimes they run into a brick wall.

The former supervisor will not answer questions about an individual’s performance and/or conduct on the job. Two things can happen then – 1) the hiring supervisor elects not to hire this applicant because they could not verify the information in the resume, or 2) the hiring supervisor decides to take the risk and hires without verification. The hiring manager may regret that decision.

In Pagan, the USPS hiring supervisor declined to hire.  The former supervisor at the VA, Mr. Lopez, took an interesting approach to responding to the USPS questionnaire.  In answering the question about whether the employee would be rehired, Lopez added as asterisk and wrote, “Due to circumstances beyond my control no coment [sic] can be made at this time.”   “Another question asked Lopez to rate Pagan’s attendance, work performance, behavior, and attitude using an excellent to unsatisfactory scale. Lopez crossed out the whole scale without rating Pagan in any of the above categories.” When the Postal Service told Pagan there were no more jobs available, he filed a petition for enforcement with the Board.

The Federal Circuit found fault with the supervisor.  The question about rehiring obviously presented a problem for the supervisor and there was nothing in the agreement that specified what kind of reference would be given.  Lopez could have responded “yes”, which he knew not to be true, or he could have answered “no”, which was an honest response. His option would certainly lead a potential employer to believe there was an issue with Pagan.

Crossing out the entire rating scale might look like a better choice. The Federal Circuit didn’t think so. “Although the agency did not promise to provide a favorable reference, or even any reference at all, it was required to act, in matters relating to Pagan, as if he had a “clean record.” The act of crossing out the portion of the USPS questionnaire asking that Pagan be ranked according to his attendance, work performance, behavior, and attitude, and then returning the form in that condition would have strongly suggested to any recipient of the form that Pagan did not have a “clean record” with the DVA.”

So, Now Putin Can Claim Whistleblower Reprisal and Get an MSPB Hearing?

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By Deborah J. Hopkins, November 28, 2022

The MSPB’s most recent precedential decision deals with a Federal contractor (Abernathy) who made a protected disclosure in 2012 when he alerted the agency’s Inspector General that agency officials had misappropriated funds. A few weeks later, Abernathy applied and was not selected for a career position within the agency, so he contacted the U.S. Office of Special Counsel, and after exhausting that potential remedy, filed an Individual Right of Action appeal at the MSPB, claiming his nonselection was in reprisal for his whistleblowing activity under 5 USC 2302(b)(8).

As you might imagine, the agency argued there was no MSPB jurisdiction because Abernathy wasn’t an employee or applicant at the time he made the disclosure; the Administrative Judge (AJ) agreed and dismissed the appeal for lack of jurisdiction.

On Petition for Review the Board, saw it differently: “[The] appellant’s disclosures are not excluded from whistleblower protection simply because he was not a Federal employee or an applicant when he made a protected disclosure,” relying on Greenup v. USDA, 106 M.S.P.R. 202, ¶¶ 8-9 (2007), which said the statute does “not specify that the disclosure must have been made when the individual seeking protection was either an employee or an applicant for employment.” This principle was again iterated in Weed v. SSA, 113 M.S.P.R. 221, ¶¶ 8-12 (2010). Despite three nonprecedential decisions from the Federal Circuit which conflict with this reasoning, the Board chose to follow its own precedent and disregard the Federal Circuit, as its NP decisions are not binding on the Board.

In addition, the Board held, “This holding is not limited to Federal contractors, but applies to any individual who makes a whistleblowing disclosure at any time before becoming a Federal employee or applicant for employment.” Abernathy v. Army, 2022 MSPB 37 (Nov. 15, 2022). (bold added)

I was discussing this case with FELTG Founding Father Bill Wiley and he made an astute observation. “Abernathy has the potential to open up a big new world of whistleblower reprisal. A smart person (e.g., Vladimir Putin) could go public with a reasonable belief that some Federal manager has violated a law, then apply for a Federal job for which he ultimately is not selected, and THEN take advantage of the discovery procedures of his MSPB appeal to dispose all sorts of cool management officials.”

While we at FELTG aren’t sure exactly how far these protections might reach, and we hope it wouldn’t extend to someone like Putin, we can only wait to see this challenged in future litigation – perhaps the Federal Circuit will have something precedential to say one day. In the meantime, join us December 5-9, for MSPB Law Week where we’ll have a more in-depth discussion on this case plus all the new Board cases that matter most. Hopkins@FELTG.com