The Good News: If Feds Want to Force You to Discipline Them for Disobeying Mask, Testing, and Vaccine Rules, You May Do So

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By Ann Boehm, August 18, 2021

I’m pretty sure that you, my FELTG friends, are aware that the Biden  administration issued some strong guidelines on vaccines, masks, and COVID-19 testing over the past few weeks. And along with this guidance has come direction from the administration that an employee’s failure to comply with the guidelines could result in disciplinary action or even criminal prosecution (for providing false information on the Certification of Vaccination form).

For those who manage people or for those responsible for advising those managers, this may seem like an enforcement nightmare. My job in this article is to give you an incentive to take action against the noncompliant, and to provide you the tools to reassure you that such actions are legally defensible.

So first, the incentive.

A few weeks ago, the VA issued a vaccine mandate for Title 38 VA employees. Soon after, articles about the mandate appeared with quotes from employees determined to resist the direction. Some employees plan to quit or retire. But one comment really got me (and here’s the incentive). One quoted employee said she was encouraging her colleagues not to retire or quit, and instead “force the department to fire them to maximize legal recourse.” Many VA Employees Apprehensive About Vaccine Mandate as Department Begins by Eric Katz, Government Executive (July 30, 2021).

If the employees want to force you to fire them, I think you should accept the challenge.

Now, the legal justification.

On July 29, the administration issued the guidelines that are binding on all Federal employees. Employees have two options. Certify that you are vaccinated (and possibly wear a mask in areas of substantial or high transmission areas) or wear a mask at all times, get tested, and physically distance. Employees do have options, at least. But they also have rules to follow. Break a rule, and you may be disciplined.

There’s precedent for enforcing these kind of rules. There’s even precedent for firing employees who do not comply with a vaccine requirement.

Let me give you a little history lesson. Way back in the 1990s, long before we could have imagined this past year’s pandemic experience, anthrax existed as a potential biological weapon. Anthrax can be deadly, but there is a vaccine for it.

In the early 1990s, the Department of Defense started vaccinating service members against biological warfare threats for which vaccines were available. By 1998, the anthrax vaccine immunization program included service members and civilian personnel who could be at high risk for biological weapons exposure.

Two civilian Navy employees being deployed on a ship bound for Korea were ordered to get the anthrax vaccine. They refused. The Navy removed them. They appealed their removals to the Merit Systems Protection Board. The MSPB Administrative Judge upheld their removals. They then appealed to the U.S. Court of Appeals for the Federal Circuit.

The Federal Circuit also upheld their removals. Mazares v. Dep’t of the Navy, 302 F.3d 1382 (Fed. Cir. 2002), cert. denied, 538 U.S. 960 (2003). The court expressly recognized the Navy’s authority to protect the health of civilian and military personnel.  Id. at 1385. The court also determined that removal was a reasonable penalty for the employees’ charged misconduct: “’failure to obey a direct order to receive mandatory injections of an anthrax immunization vaccine.’” Id. The employees tried to get the Supreme Court to consider their case, but the Court denied the petition for writ of certiorari. 538 U.S. 960 (2003)

Just like anthrax, COVID-19 presents a legitimate danger to the health of the Federal workforce. The guidelines issued by the administration are intended to minimize that danger.

I fully acknowledge that there is a vast divide among people all over the world regarding vaccine and mask mandates. Just a few minutes reading through Facebook, Twitter, neighborhood listservs, and a multitude of media articles, or even conversing with friends and family makes that patently clear. But Federal employees now have been given the instructions. They must comply. Agencies: If employees choose to disobey the guidelines, they are subject to discipline. And Mazares strongly suggests that removal may be the appropriate penalty.

Good luck out there! Boehm@FELTG.com

Averting Retaliation: Fear is OK, but Don’t Act on Anger

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By Dan Gephart, August 18, 2021

I remember very little about second grade, but I can vividly recall sitting in class when my fellow classmate Teresa C. tapped me on the shoulder and very matter-of-factly said, “I know you did it.”

“Did what?” I replied.

“You murdered my father,” she said, “and I’m going to tell the teacher.”

Thanks to Catholic guilt, already deeply ingrained in me at seven years old, my first thought was: When did I do this horrible thing? I eventually realized the claim was ludicrous. I mean, my parents still weren’t letting me cross the avenue by myself. How the heck could I pull off a murder without leaving my side of Fitler Street? Yet, I was certain the teacher would believe Teresa and the police would storm into Room 202 (yes, that really was my second-grade classroom) at any moment. I was terrified.

Fear is a common reaction when an individual feels they’ve been unfairly accused, particularly if they have a lot to lose, such as a job or the respect of peers. Perceived injustice creates psychological discomfort – and the person instinctively tries to find a way out of that discomfort.

I never found a way out of my second-grade discomfort. I spent the next couple of days terrified that the police were going show up at school or my house and take me away. But then again, I was just a seven-year-old kid. For an adult supervisor in the Federal workplace, there is a more common, easier path out of the discomfort. And that’s anger. Unfortunately, while anger may make help you forget your pain for the moment, if can also lead to retaliation when unchecked, especially if:

  • The accusation is very serious.
  • The accusation will negatively impact relationships with others at work.
  • The accused feels that he/she/they are being judged.
  • The accused believes his/her/their job is in jeopardy.

It’s no surprise then that retaliation is asserted in almost 45 percent of EEO complaints, or that findings of discrimination based on retaliation comprised between 42 and 53 percent of all findings from 2009 to 2015. And in many of those findings of retaliation, the original claim under which the complaint was filed was dismissed.

It’s so counter-intuitive, but if you’re named in an EEO complaint — even if you are certain you are wrongly accused — you must find a way to deal with your anger. The other thing you can and, quite frankly, should do is be aware of what retaliation looks like so you know exactly what to avoid. For example, never publicly discuss EEO complaints, don’t make jokes about EEO, and don’t try to isolate the complainant. All of these actions have led to findings of discrimination on the basis of retaliation.

To learn more, join Attorney Meghan Droste on August 24, for the 60-minute webinar EEO Reprisal, Handle It, Don’t Fear It. In this the penultimate session in our Supervising Federal Employees webinar series, Meghan will discuss specific cases involving retaliation and provide you with several steps you can take to ensure you avoid retaliation. Reprisal will also be discussed along with intentional discrimination and contractor complaints during Day three of FELTG’s EEOC Law Week September 20-24.

After a couple of days, I began forgetting to worry about my imminent arrest. When I eventually told my parents, they laughed. Oh, and before Teresa C. transferred to another school a couple of years later, I became aware that her father was very much alive. Gephart@FELTG.com

What A Long, Strange Trip It Has Been

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By Meghan Droste, August 18, 2021

Litigation, even when it all goes according to plan, can end up being a long and winding road.  And when it doesn’t go quite as it should … well, a long, strange trip is one way to describe what can happen.

Randolph A. v. Department of Veterans Affairs, EEOC Pet. No. 2020004882 (June 23, 2021) is a journey filled with many twists and turns. The story starts in September 2010 when the complainant filed a formal complaint regarding a non-selection. The agency investigated the complaint and issued an ROI. The complainant requested a hearing and then subsequently appealed the administrative judge’s grant of summary judgment in favor of the agency. On appeal, the Commission found in favor of the complainant and awarded several remedies, including placement in a position and back pay, and ordered the agency to conduct a supplemental investigation regarding compensatory damages. The agency filed a request for reconsideration, which the Commission denied.

So far everything seems straightforward. But here’s where the journey gets a bit strange: Instead of implementing the Commission’s decision, the agency sent a letter in 2016 to the Commission, asking the Commission to vacate its decision based on a November 2010 global settlement agreement with the complainant. The complainant objected to this and filed a petition for enforcement. The Commission found that the agency’s arguments regarding the settlement agreement were untimely, and that the agency had waived them, having waited until after the investigation, hearing stage, and appellate process to first raise the existence of the agreement. In November 2017, the Commission ordered the agency to comply with the previous order.

Unsatisfied with this result, the agency wrote to the EEOC acting chair in January 2018 to seek review and reversal of the Commission’s decision.  A month later, the agency issued a final order awarding damages. The complainant appealed the award, which the Commission modified.  In response, the agency filed request for reconsideration and again raised the arguments regarding the settlement agreement.

As the Commission notes, “[d]espite repeatedly addressing the Agency’s assertion in prior decisions, the Commission nonetheless provided the Agency with further reasoning and explanation” as to why its very untimely arguments failed. The case then ended up before the Commission yet again because the agency refused to comply with the decision and instead sent its January 2018 letter to the compliance officer.

In its most recent decision, the Commission provided a lengthy discussion of why the agency’s arguments failed, drawing comparisons to the Federal Rules of Civil Procedure to highlight how the agency failed to act with due diligence in 1) keeping track of the 2010 settlement agreement, and 2) timely raising arguments regarding it. The Commission yet again ordered the agency to pay compensatory damages to the complainant. It also informed the agency that if it failed to do so, it might refer the matter to the Office of Special Counsel under the memorandum of understanding (MOU) between to the two agencies. Under the MOU, OSC could initiate disciplinary action.

It’s unclear where the agency will go from here, but hopefully the potential involvement of OSC will prompt the agency to finally follow the Commission’s order and pay the damages it was ordered to pay years ago.

One last thing — the title of this article isn’t just about the Randolph A. case. It’s also because, to borrow from another song and a completely different genre, it’s time for me to say so long, farewell, auf Wiedersehen, and goodbye to the wonderful FELTG community. Starting next month, I will be joining the ranks of many you as a Federal employee.  Thank you to all of you who have joined me in the classroom over the past four years.  I have learned so much from you and will take many fond memories with me.  To paraphrase my source material, what a (not) long (enough), (wonderful) trip it has been – I hope this is more of a see you later rather than a real goodbye. Droste@FELTG.com

Top 10 Tips From the Other Side

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By Meghan Droste, August 18, 2021

The time has come, FELTG readers, for my final Tips from the Other Side.  It has been a pleasure providing you with insights on what to do, and what not to do, and how to do the best job possible when handling a variety of EEO-related issues. I hope you have enjoyed the journey and picked up some valuable lessons along the way.

Before I go, here is a top ten list of sorts. These are in no particular order and the list is not meant to be exhaustive, but I hope you can use this collection of final tips as a roadmap to avoid common pitfalls.

10 – Understand timeliness issues: The EEOC is pretty clear on how long complainants have to contact an EEO counselor, file a formal complaint, request a hearing, etc. While these issues can be confusing for complainants who are unfamiliar with the process, they shouldn’t be for agencies. Remember that harassment complaints include a series of events, so employees have 45 days from any of the events — not necessarily the first one — to contact a counselor. Failure to accommodate claims can also be timely after more than 45 days. Each time an employee needs an accommodation and the agency doesn’t provide it can be a new violation, it restarts the 45-day clock.

9 – Reasonable accommodations must be effective: Speaking of accommodations, remember that agencies are required to provide effective accommodations to qualified individuals. That means that an agency’s obligations don’t end just with providing the accommodation. You need to follow up and make sure that it’s actually effective before you can consider your work done.

8 – Don’t cut corners or jump to conclusions: Far too often, agencies seem eager to dismiss complaints before they should. Don’t dismiss a complaint just because the complainant worked for a contractor; you need to gather enough information to actually do a joint employer analysis and determine whether the agency was an employer. Also, don’t look to the merits of a complaint in order to dismiss it; all you should be doing is determining whether or not the facts could state a claim for relief. Even if you don’t think the complainant will prevail, you still have to accept the complaint if it’s possible they could.  You might be trying to save time or agency resources by getting rid of complaints early, but you will likely create more work for the agency in defending the dismissal and then still have to investigate the complaint in the end.

7- Know what to do with medical information: Agencies may only request medical information from employees in very specific circumstances (when it’s job related and consistent with business necessity). Be sure you don’t ask for it when you’re not entitled to it, and if you do collect, make sure you know what to do with it. Don’t share it with anyone who doesn’t need to know it, and don’t commingle medical documentation with other, non-medical, information.

6 – Retain your documents: More on documents. Make sure you don’t destroy things before you’re allowed to. The Commission’s regulations require agencies to retain documents regarding personnel actions, such as selection and removal decisions, for one year following the action. This retention requirement is extended if there is litigation. If someone involved files an EEO complaint, you will need to keep all of the documents until the end of the litigation. If you destroy them before you should, the agency could face sanctions or find itself in a situation where it cannot adequately explain its actions.

5 – Make sure your investigators create an appropriate record: Agencies are responsible for the quality of the ROIs their investigators produce, even if those investigators are contractors. Be sure to review the ROIs before finalizing them—did the investigator interview all of the relevant witnesses and collect all of the relevant documents? If not, send it back for the investigator to do so. If you don’t, you might find your agency on the end of an unfavorable decision by the Commission.

4 – Meet your deadlines: Another way to end up on the wrong side of the Commission is to miss your deadlines. Agencies have 180 days to complete their investigations and issue ROIs. This is not a suggestion. You also need to be mindful of appeal deadlines, as missing those could result in the Commission rejecting your arguments on appeal without considering them at all.

3 – Take allegations of harassment and discrimination seriously: Agencies need to act promptly when they learn of discrimination or harassment. Don’t delay in separating the individuals, starting an investigation, or issuing discipline if appropriate. Failure to act promptly can result in a finding of liability, but it may also undermine the confidence your employees have in the agency.  Also, don’t forget to make the victim of harassment whole—even if you do everything else right, if you fail to address the harm they suffered, you can still be on the hook.

2 – Follow the Commission’s orders: Orders from the Commission, whether they come from an individual judge or from OFO, aren’t suggestions. Ignoring them can land your agency in (even more) hot water.

1 – Make sure your employees, supervisors, EEO staff (everyone!) is well trained: I promise I’m not saying this because I have been helping to provide that training to agencies for four years. It’s my top tip because I truly believe that if people receive the training they need, they will avoid so many of the common mistakes that end up before the Commission. I’ve been saying for years that in a perfect world I would train my way out of a job, because no one would ever violate the law again.  That hasn’t quite happened, but I hope the past few years have at least made some progress towards that.

As I say at the end of all my classes, good luck out there! Droste@FELTG.com

And Now a Word With … Marcus Hill, on Resolving Conflicts Before They Lead to Litigation

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By Michael Rhoads, August 18, 2021

‘She hit me!’ ‘Don’t touch me!’ ‘I’m not touching youuu…’ ‘You’re so annoying!’

My children are now out of diapers and forming their own opinions and developing their own interests.  Among the three of them, they are a fun-loving, carefree bunch.  But no matter how much they love each other, the occasional argument over the new toy, or simply vying for mom and dad’s attention can get heated from time to time. My wife or I will step in to resolve these little spats, and then we move on with our day.

Conflict is unavoidable at any age. Even after we’ve grown up and start our careers, there will always be someone you work with who may pose a greater challenge than others. I recently spoke to Marcus Hill (pictured above), FELTG instructor and Principal of Hill Management Consultancy (HMC) LLC, about his experiences related to conflict management over his 37-year career in the Federal civil service.

MR: What is the most common type of conflict in the workplace?

MH:  In my experience, the most common type of conflict in the workplace relates to assignment or task interdependences in which employees must coordinate, interface or team to accomplish them. Think about it. If you are a part of a work unit in which your job responsibilities typically require you to perform independently, no problem. However, if what you do requires you to interface, coordinate, rely upon or team with others, that just might be a problem.

MR: How can you promote a more harmonious environment for all?

MH:  I will respond to this question from the standpoint of any employee within a working environment, whether non-supervisory or supervisory. I believe it is imperative to possess and demonstrate the ability to effectively lead oneself first, in the workplace. Let’s unpack that a little.  It starts with understanding yourself and how you relate to others. Being knowledgeable of and practicing emotional intelligence.  Also having an awareness of your personality type and sense for others in the workplace can also be beneficial to harmonizing employee engagements. By demonstrating behaviors you desire others to emulate, you have an opportunity to influence co-workers’ actions from wherever you are in the organization. Simply put, “walk the talk.” Typically, high-performing, harmonious organizations are saturated with employees that have invested in the organization’s vision, actively engaged in achieving its mission and aligned behaviorally with the business unit’s core values.

MR: Is there a one-size-fits-all approach to conflict management?

MH:  Based on the various natures and intricacies related to conflict, I don’t believe there is a one-size-fits-all approach managing them.  However, there are proven strategies, methodologies and processes that can be used to effectively address conflict.  I will be addressing some of these in my upcoming training delivery, Resolving Conflicts Before They Lead to Litigation!

MR: What is the best tool in your toolbox for managing conflict between employees?

MH:  Active listening is the most effective tool for managing conflict between employees. To quote Dr. Stephen Covey: “Seek to understand before being understood.” By exercising active listening during conflict, the parties have the best opportunity to identify and address the specific, not perceived, issue(s) at dispute. Many times, the parties are focused more on defensive posturing to justify their actions in response to what they perceive the problem to be, reacting on filtered information. The goal is to be cognizant of the symptoms stemming from the conflict but focus on identifying and addressing the root cause creating it.

MR: What role does management play in resolving disputes between co-workers?

MH:  Management plays a primary role in resolving disputes between co-workers. By creating a working environment that establishes an organizational culture, reflective of values, that promote harmony, managers can set the tone for healthy debate instead of unproductive disputes.

Be more effective in resolving conflict at your agency!   Join Marcus on Wednesday, September 30 from 11:15-12:30 PM ET for Resolving Conflicts Before They Lead to Litigation. Click here to view our other courses during Federal Workplace Week 2021: Accountability, Challenges and Trends.

Stay safe.  And remember, we’re all in this together. Rhoads@FELTG.com

Establishing Conduct Expectations: A Sample Policy

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By Barbara Haga, August 18, 2021

After the last column was published, I heard from a practitioner from one of those agencies that didn’t have a lot of written guidance on conduct issues.  She was asking if I had a sample of such a set of expectations. I didn’t have a sample, but I have seen bits and pieces in various agency documents that I thought would be helpful. So, I decided to take a stab at putting a policy together.

I have started with work schedules, attendance, and related matters. Next month, I will work on other discipline-related topics. If you have some suggested topics or language you’ve developed, please feel free to e-mail me.

WORK AND CONDUCT EXPECTATIONS

This memorandum sets forth expectations regarding work behaviors and general procedures employees are expected to follow in our workplace. Establishing clear expectations is intended to ensure that employees are aware of basic requirements regarding attendance and work practices and also to ensure that consistent practices are followed throughout the organization.  Meeting these expectations will facilitate effective, timely, and accurate work outcomes which are the key to meeting our mission.

ATTENDANCE AND REPORTING. Employees are to be dependable and prepared to fulfill work requirements during scheduled duty hours, whether working on government premises or at an alternate worksite.

WORK SCHEDULES. Work schedules are set based on the needs of the organization. That doesn’t mean that employee preferences are not taken into account, but ultimately such decisions rest on the when the customers need our services, when organizations we typically deal with are open, and other factors that impact when our work needs to be performed.

The work schedules that are authorized include (fill in options here). Details on use of these schedules can be found here (insert link).

In the event that an employee wishes to request a change in work schedule, requests must be submitted to the supervisor in writing (in advance, or a set time frame in advance.)  Supervisors will respond to requests for schedule changes as soon as possible.

WORK LOCATION. Telework is authorized in the same manner as schedules are set.  The ability to work remotely depends on when and where our services are needed, what types of interactions must take place and how these can be effectively accomplished, the need for sharing information and coordination among work team members, and other similar factors.  We will consider employee preferences, but the demands of the work are always key in such determinations.

Telework is authorized (fill in options). Details on our telework policy are located here (insert link).

LUNCH PERIOD.  Daily work schedules include a ______ minute lunch period. The lunch period is a non-work period. Shifts without lunch periods are generally not authorized, meaning employees may not skip lunch and end their shifts earlier.

BREAKS. Formal breaks are not authorized. Employees are free to take reasonable short breaks to get a beverage or to take a restroom break.  Smoking breaks are authorized……  (Fill in if you have such a policy).

LEAVE SCHEDULING. Employees request leave from their immediate supervisors. Leave requests may be submitted by e-mail, in the timekeeping system, or by telephone (adjust this to fit your requirements). If requesting leave by telephone, the employee should speak to the supervisor directly. If the supervisor is not available, the employee should leave a message with a telephone number where he or she can be reached to be advised whether the leave has been approved. Procedures and time frames for various types of leave requests are outlined in the following paragraphs.  Failure to comply with the procedures may result in the leave not being approved.

Annual Leave.  Employee requests for annual leave are to be submitted in advance.  (Union contracts and leave policies may provide specifics regarding dates by which leave periods must be scheduled.)  Approval of annual leave is dependent on mission requirements.   In the rare event that previously approved leave must cancelled, employees are expected to cooperate in rescheduling.

Sick Leave. Employees are entitled to utilize sick leave for the six authorized uses contained in 5 CFR 630.401. (A reference to a directive or language in a union contract that lists the uses would be more informative). Employee requests for sick leave for anticipated absences such as planned surgery or scheduled treatment should be submitted in advance.  (Your policy may ask for a week or ten days’ notice, for example.) Certain sick leave uses and sick leave over three consecutive days may require written documentation. Details on sick leave usage requirements are found here. (insert link)

Emergency Annual and Sick Leave. The need for leave for annual leave emergencies, such as a car breaking down on the way to work or a plumbing emergency in the home, is to be reported to the supervisor within ____ hours of the beginning of the work shift. The same time frame applies for short notice sick leave requests for unexpected illnesses or medical appointments. As noted above, documentation may be required before leave can be finally approved. Supervisors will advise employees whether the emergency leave is approved as soon as possible.

Other Leave Types.  There are a variety of types of leave for special circumstances such as court leave, leave without pay, Family and Medical Leave, etc. Information on these types of leave can be found at (insert link).

TIMEKEEPING SYSTEM. Employees must maintain accurate information about their work status in the timekeeping system. While timecards are approved biweekly, the best practice is to ensure that the information is input each day. This minimizes problems with omitting leave use or a late arrival from earlier in the pay period and also helps supervisors fill in information if an employee is unexpectedly out and not able to complete the timecard by the deadline.

It is the employee’s responsibility to ensure that leave is accurately input, including any special coding necessary for certain kinds of leave. For example, if you are using Family Care Sick Leave you must identify in the dropdown menu which category of leave you are using (customize this to the specifics of your leave system). If an employee is unsure about how to properly code an absence, it is his or her responsibility to do the necessary research or reach out to the appropriate timekeeping personnel to verify how to properly complete the entry.

MAINTAINING UP-TO-DATE CONTACT INFORMATION. Employees must provide contact information including addresses and telephone numbers and personal e-mail addresses to ensure that, should it be necessary to reach employees outside of work hours, this may be accomplished.

Providing contact information also extends to an employee’s location while on leave for potential recall should that become necessary in the event of an emergency.

 

And Now a Word With … FedUpward Podcaster Love Rutledge

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By Dan Gephart, August 3, 2021

It’s unanimous here at FELTG. The headquarters team and our instructors are beyond tired of hearing the hackneyed tropes about bad Federal employees running amok. That’s why we teach courses like our flagship UnCivil Servant: Holding Employees Accountable for Performance and Conduct, so that you can take direct action against the few misbehaving and poor-performing Feds who ruin the reputations of everyone else.

Federal employee Love Rutledge is also fed up with the “caricature.”

“We’re either lazy, dumb, and couldn’t find better jobs elsewhere; or we’re scheming deep-staters who plot to take down certain segments of the population,” she said. “Obviously, we’re neither. Most Federal employees work hard, serve the public and do the best they can every day.”

Love was so incensed with this mischaracterization she had to do something about it. She launched FedUpward, a podcast where Federal civil servants can find “inspiration, motivation and practical tips.” She dropped her first podcast in October 2019 and just surpassed the 100-episode mark last month. Recent podcast episodes have included interviews with FELTG President Deborah Hopkins (Performance Management and the Santos vs. NASA Ruling) and FELTG instructors Katherine Atkinson (Can My Manager Ask Me THAT When I Return to the Office), Marcus Hill (Network with Senior Executives and Work on Government’s Big Challenges) and Shana Palmieri (How Feds Can Maintain Mental Health and Help Others).

Finding free time isn’t easy for Love. She’s also a full-time Federal employee and the mother of two young children. But she took some time answer a few FELTG questions.

DG: What’s the best piece of advice for Feds you’ve learned over your 100-plus episodes?

LR: There’s rarely a challenge a Federal employee faces that hasn’t been faced by others. The more we collaborate across agency and department lines, the more efficient we can be.

DG: What is something you learned via your podcast that really surprised, saddened, or angered you?

LR: I’ve had several Feds reach out to me who’ve experienced truly toxic managers, retaliation for reporting bad behavior, and full-on discrimination. Those are the more frustrating messages I get. We cannot attract and retain talented public servants while treating folks badly.

DG: How was your work life changed by the pandemic?

LR: As a parent to two young children, the pandemic has been absolutely brutal. My husband and I are fortunate to have resources that gave us options, but few good options existed for childcare over the last year plus. Mama is TIRED. I think many Fed parents can relate to the sense of exhaustion and lack of control that we’ve faced during the COVID crisis. And we’re still facing it. For those of us with children under 12, our options for activities and childcare remain quite limited. I doubt you can find any parents who say they had a good work/life balance over the last 16 or so months.

DG: What should agencies do to improve the overall morale of their workforce? 

LR: Everyone wants to feel appreciated for what they do. Truly listening to employees to understand their concerns, supporting their growth, and providing flexibility where possibleall go a long way toward employee engagement and satisfaction.

DG: Say someone is reading about your podcast here for the first time. Why should that person listen to your podcast?

LR: People listen to my show to get first-person perspectives on current issues, to connect with Feds going through the same issues they face, and to learn about resources they might not otherwise discover. I hope your readers not only listen to the podcast at FedUpward.com or wherever they get their podcasts, but also reach out to tell me what they want to know.

In her very first episode, Love explained the reasons for launching the podcast. Besides looking for more good news about Feds, she wanted more information for younger and middle-aged Feds, and she’d like to see agencies do more to attract younger people.

“In most of the trade publications, you still see their advertisers are hearing aid companies and bath remodelers who support customers’ loss of mobility,” she said. “I’d love to see that shift and have professional organizations for federal employees support people of all ages — and not just Young Government Leaders, who provides those opportunities now.” Gephart@FELTG.com

OPM Reentry Guidance Signals Further Acceptance, Expectation of Telework

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By Dan Gephart, July 26, 2021

The telework paradigm shifted greatly during the pandemic and nowhere is that clearer than in the 38-page guidance the Office of Personnel Management released late last week.

While titled “Additional Guidance on Post-Reentry Personnel Policies and Work Environment,” the memorandum written by OPM Director Kiran A. Ahuja, and the majority of “Frequently Asked Questions” section focus on telework and remote work.

Ahuja wrote: “[A]gencies can, where appropriate, deploy personnel policies such as telework and remote work effectively and efficiently as strategic management tools for attracting, retaining, and engaging talent to advance agency missions, including in the context of changes in workplaces nationwide as a result of the pandemic and in response to long-term workforce trends.”

The guidance suggests that agencies “take this opportunity to adjust their telework policies to reflect a new understanding about how telework has worked at their agencies.” OPM provides the following roadmap of considerations when crafting your post re-entry telework policies:

1 – Make telework determinations based on the functions of the job, and not mere managerial preference.

2 – Treat employees with similar work functions across work units similarly when determining telework eligibility.

3 – To the extent possible, try to align telework programs with employee needs and the business goals of each work unit to avoid a one-size fits all approach to telework participation.

4 – When possible, have consistent telework policies across locations.

5 – When possible, consider restructuring jobs so that all employees, theoretically, could be eligible for at least situational or occasional telework.

6 – Make all employees aware of the agency’s telework policy and criteria for telework participation.

7 – Require all teleworkers and supervisors of teleworkers complete appropriate training before entering into a telework agreement.

8 – Provide adequate telework training to supervisors on how to assess and manage the performance of teleworkers.

9 – If appropriate, allow some or all teleworkers to meet emergency operations or COOP duties through telework rather than reporting to the normal or designated COOP site. Encourage mission essential and non-mission essential employees to practice telework to help the agency prepare to meet emergency situations.

The OPM guidance also reminds agencies to complete applicable collective bargaining obligations before directing employees to return to the physical workspace. OPM wrote:

“While an agency has the right under 5 U.S.C. 7106(a) to determine the location where particular employees will work, there may be an obligation to collectively bargain on implementation of any decision to return employees from maximum telework status prior to implementation of this decision.”

This guidance will be discussed this Friday during The 2021 Telework Challenge, the fifth and final day of FELTG’s Post-Pandemic Federal Workplace: Managing Accountability and EEO Challenges. You can still register for any of the remaining days, including Friday’s session. This latest OPM guidance will be wrapped into other upcoming training including EEO Challenges, COVID-19, and a Return to Workplace Normalcy, a 3½-hour training that kicks off FELTG’s Federal Workplace 2021: Accountability, Challenges and Trends. Gephart@FELTG.com

The To-Do List for the New MSPB Board Members

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By William Wiley, July 21, 2021

By now you probably have heard that the White House finally has nominated two individuals to be Board members over at the US Merit Systems Protection Board. After more than four years of the civil service having no oversight agency to protect the fundamental rights of federal employees, Cathy Harris and Raymond Limon are now grinding their way through the Senate confirmation process, hopefully to be confirmed sooner than later. Based on my many years working at MSPB, with 12 of the 20 Board members we have had in history, I think I can speculate with some degree of accuracy what awaits them once they get there:

  • When I joined the newly confirmed MSPB chairman’s staff in 1993, there were 62 holdover cases awaiting his vote. That felt like a HUGE number of cases to dig through, given that a Board member needs to vote on about five appeals a day just to stay even (i.e., a member who is voting out five cases a day is doing a full day’s work in service to our great country). Our next Board members will be facing a holdover backlog of almost 3500 appeals!
  • The Board will have to decide how it will attack this overwhelming backlog. The obvious options would be to address cases first-in/first-out (oldest first), work the removal cases first because they are the most serious matters within MSPB’s jurisdiction, or perhaps try to pinpoint pending cases that have the most significant controversial issues that need to be cleaned up ASAP so their principles can be applied to other cases. Or, quite frankly, any other way the Board decides to plow forward: alphabetical, random, or eeny, meeny, miny, moe. There is no legal standard nor precedence for the new members to look to when deciding how to move forward.
  • I say “the Board” because historically big decisions like this would be made through consensus of the sitting Presidentially appointed Board members. However, as a strictly legal matter, the new chair has the sole authority to make decisions like this. During the early days of the new MSPB, the hierarchy of decision-making and comity among the members will have to shake itself out. Although Board members have worked together (with occasional exception) with a respectable degree of deference and cooperation in the past, nothing guarantees that such mutual respect will carry forward into the future. By law, all three members cannot be from the same political party. As I understand it, the current two nominees are Democrats. A third member would no doubt be a Republican, and we’ve all seen what can happen when that happy mix occurs.

Speaking of a Republican appointee, I must admit that I’m unsure what’s happening there. Historically when confronted with multiple vacancies requiring a mix of Democratic and Republican nominees, a White House would seek suggestions from the Senate leadership of the other party for the out-party seats. Then, a package would be put together that incorporated who the White House wanted and who the leadership of the other party wanted into a nice uncontroversial package that would receive a prompt Senate confirmation vote. Has this White House decided not to package? Or is it going to accept an individual already nominated by the past Republican administration for the third vacancy at MSPB? Readers better connected than am I may have picked up on what’s going on, but I haven’t seen it from where I sit.

Aside from these incredibly important matters of Board protocol, each member will be considering several personal matters that are part of being a Board member:

  • Staff: MSPB employs a fine headquarters staff of career employment law attorneys. No doubt, some of those career attorneys will be detailed to each new Board member immediately once they take the oath and start considering cases. Beyond that initial period, each member will be allowed to select political appointees to serve as legal counsels, sort of like a federal judge would appoint law clerks. In many agencies, these second-level political appointees would be controlled by the Executive Office of the President or the Office of Personnel Management. A White House often has a long list of political supporters who would just love to have a good government job. However, by law the chair of the Board can make these political appointments without having to get approval from anyone else, 5 USC 1204(j). For those of you readers out there interested in a little career change, we can expect to see the new Board members quickly putting out recruiting feelers.
  • Issues: Some newly appointed Board members, especially those with extensive federal law experience, walk in the door with issues they want to address in a new decision with their name on it. Others may have to vote on several cases before they develop a feel of issues that really matter to them. One Board member I worked with had an alcoholic in the family, so he closely reviewed any case involving an alcoholic to make sure that the appellant’s rights were protected. Another member I worked with had represented unions in the private sector and strongly believed in the importance of independent decision-making by arbitrators. Another had grown up in a military family where adherence to rules and order was important. Just like Justices on the Supreme Court, each member will develop a particular interest in some aspect of federal employment law and devote significant time to making sure that issue gets well-analyzed in any final opinions that are issued.
  • The next appointment: As is true for just about any Presidential appointment in the executive branch, these jobs come with an expiration date. Although the law provides that a Board member’s term is for seven years, that seven-year period starts on March 1 of a particular year, regardless of when the individual is confirmed to serve in that position. To my knowledge, no one has ever served a full seven years as a Board member. One of the Board member positions to which this White House will be nominating an appointee expires in just about 18 months. So, unless an appointee is at the end of a career, he or she needs to be thinking down the road and working toward the next job. Very few individuals have used an appointment as an MSPB Board member as the steppingstone to an even higher-level government position.

And finally, there will be lots of odds and ends to decide:

  • Will the members consider and vote cases remotely, so they never have to come into the office?
  • Should the members personally discuss the arguments in the appeals before they are voted on?
  • Can the members engage in public outreach by speaking at conferences and seminars, or is their time better spent cloistered in some warehouse reviewing appeal files and reading case law while subsisting on energy drinks, caffeine tablets and meat-lovers pizza?

These new members will have an unprecedented herculean task before them. Although I was honored to serve on the three occasions I was tapped as counsel to a member, I am happy that I have now taken a downgrade into civilian life. I am hopeful that the new members and their staffs enjoy themselves in their service as much as I did. I appreciate the good that they are doing for our country by helping to keep the federal government based on deserved merit and not strictly political philosophy. May the force be with them.

Also, it would be a good idea for them to put a cot and pillow in the corner of their offices. Wiley@FELTG.com

Should Your Agency use Progressive Discipline or Performance Demonstration Periods with Probationers?

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By Deborah Hopkins, July 21, 2021

The question in this article’s title has come up a few times over the last several weeks, particularly during our flagship UnCivil Servant training classes.

We’ll give you the short answer, and then the longer answer.

Short answer: No.

Explanation: According to OPM, “The law and regulations specifically exclude probationary/trial employees from the procedures that require the use of an opportunity to improve. This exclusion is because the entire probationary period is similar to an opportunity period. These employees should receive closer supervision, instruction, and training as needed during the first year of their employment.” The same principle is true when it comes to discipline. The agency doesn’t have to justify its penalty in removing a probationer, so even minor misconduct that wouldn’t justify removal of a career employee can warrant a probationer’s removal.

As soon as there’s a performance or conduct issue, the law allows to the agency to remove the probationer, even if the offense is minor.

Here is why removing a probationer without a Demonstration Period or progressive discipline makes sense:

  • The proof necessary to remove a probationer is very low.
  • The action can be taken and effected in one day.
  • If the probationer is ALREADY having performance or conduct issues, just imagine how they might behave once their due process rights attach.
  • It expedites the process to get the position posted again.

Now, read the headline again and then check out the next piece of discussion.

Longer answer: Maybe, probably not, but if you do then you’d better realize WHY you’re doing it.

Explanation: If a probationary employee is already having performance or conduct issues, the supervisor needs to think very hard about whether the additional time and effort spent to coach, train, work closely with, mentor, and help the probationer along is worthwhile. Because once that probationer hits their one-year mark (in most jobs, anyway), they become a fully vested career employee where civil service protections attach. It’s still possible for the agency to take an action against a career employee, as FELTG readers well know, but the simplicity of a probationer’s removal cannot be overstated.

The below situations might be reasons why a supervisor decides to keep a probationer around:

  • The position is difficult to recruit for or the job is located in a remote place.
  • The benefit to the government of working with the employee outweighs the drawback to the supervisor.
  • The employee has a unique skillset that it is worth the extra oversight to keep that person employed by the agency.
  • The employee’s attitude shows willingness to learn and improve.
  • The misconduct cannot be forgiven, but the supervisor doesn’t think it requires the probationer’s removal.

Surely, there are multiple other reasons why supervisors might keep probationers around. And let me be clear: I am not advocating pro- or con- removal, one way or the other. I just think it is important to point out that probationers have very few rights to their jobs while in the probationary period. If an agency is having a problem with a probationer, that supervisor should think very hard about making life easier and handling the problem now. However, if the supervisor thinks there’s hope for the employee, I can absolutely understand and support that position as well. Regardless of your stance on this issue, best of luck with all your probationary employees.  Hopkins@FELTG.com