The New Executive Orders and Labor Relations

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By William Wiley, June 5, 2018

As most of our wonderful readers know by now, on May 25 President Trump issued three executive orders to shake up the civil service. One of them primarily was focused on employee accountability for performance and misconduct. As we wrote in another article, those changes were significant, but well within the range of flexibilities already in the system, and already employed by the more progressive agencies for many years.

The other two executive orders were designed to change the world of labor relations in federal agencies. Although the EOs have been characterized in the media as taking away the “rights” of unionized employees, they actually don’t do that. Instead, they primarily lay out a framework for organizing management proposals once collective bargaining commences. Unions still retain their basic rights under law; the executive orders direct where management is supposed to take a contrary position consistent with an “effective and efficient Government.”

Here are the primary changes:

  • “Official time” is now called “taxpayer-funded union time.”
  • Agencies should eliminate unrestricted grants of taxpayer-funded union time and instead require employees to obtain specific authorization before using it.
  • Agencies should strive for a negotiated union time rate of 1 hour or less (here are FELTG, we don’t know what this means).
  • Employees may not engage in lobbying activities during official time.
  • Union reps must work 75% of the year in their regular jobs.
  • No free use of agency facilities or property by the union.
  • No reimbursement for expenses incurred performing union activities.
  • No official time to pursue union grievances.
  • OK to use official time to prepare grievances brought by an employee or to appear as a witness.
  • Agencies that form part of an effective and efficient Government should not take more than a year to renegotiate CBAs.
  • The parties should adhere to negotiating period of 6 weeks or less to achieve ground rules, and a negotiating period of between 4 and 6 months for a term CBA under those ground rules.
  • The agency head shall notify the President of any negotiations that last longer than 9 months.
  • A Labor Relations Group shall consist of the OPM Director and staff and representatives of participating agencies determined by their agency head in consultation with OPM.
  • The OPM Director shall chair the Labor Relations Group and provide administrative support for the Labor Relations Group.
  • Agencies with at least 1,000 employees represented by a collective bargaining representative shall participate in the Labor Relations Group. Responsibilities:
    • Gathering information to support agency negotiating efforts and creating an inventory of language on significant subjects of bargaining that have relevance to more than one agency and that have been proposed for inclusion in at least one term CBA.
    • Developing model ground rules for negotiations that, if implemented, would minimize delay and set reasonable limits for good-faith negotiations.
    • Analyzing provisions of term CBAs on subjects of bargaining that have relevance to more than one agency, particularly those that may infringe on, or otherwise affect, reserved management rights.
  • The analysis should include an assessment of CBA provisions that cover comparable subjects, without infringing on reserved management rights.
  • The analysis should also assess the consequences of such CBA provisions on information sharing and analysis, including significant proposals and counter-proposals offered in bargaining.
    • Establishing ongoing communications among agencies engaging with the same labor organizations, and
    • Assisting the OPM Director in developing Government-wide approaches to bargaining issues that advance the policies set forth in the order.
  • This one is HUGE: Management should endeavor to bargain with the union so that employees cannot grieve removals to an arbitrator.

There are a lot of words and terms put forth as mandatory, but in reality, have squishy meaning in application:

  • Interpreted in a manner consistent with the requirement of an effective and efficient Government
  • Reasonable time
  • Promptly
  • Minimize delay
  • Timely manner
  • Expeditiously
  • Reasonable, necessary, and in the public interest

Also, there are time limits for implementation, reports to be made, and authorities assigned. You’ll have to read the full EOs to get the details and the flavor of what the White House is directing to be done. Be that as it may, if you are a management official the above are your goals and requirements for your collective bargaining relationship with your union, so you’d better get hopping if you want this to be done in a “timely manner.”

Here at FELTG, we’ve now given you two summaries relative to the three new EOs. In our third piece regarding these significant changes directed by the White House, we’ll discuss the legality of the requirements of the EOs (we’ve already spotted one illegal provision) and the enforceability of the requirements. We’ll try to get around to that just as soon as our respective heads stop spinning from trying to digest everything that’s going on here. It’s one thing to put out orders; it’s another to be able to enforce those orders (those of you with children know exactly of what I speak).

Some years, our business of civil service law is relatively boring. This is not one of them. Hang in there. We’re with you every step of the way. Wiley@FELTG.com

What You Need to Know About the New EOs

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By William Wiley, May 29, 2018

Wow, what a news dump Friday late. On Saturday, it was above the fold on page 1 of the Washington Post; it was above the fold, page 1 of the New York Times; and the PBS News Hour called it the most significant change to our civil service in over a generation. Who knew that President Trump’s three new Executive Orders issued last week would cause such a stir in the media? “Unprecedented changes by which the White House has made it easier to fire bad federal workers by curbing their protections.”

And they are all wrong.

Yes, the President issued three new Executive Orders related to the civil service last week. And, yes, they are significant. But they do not – repeat, do not – curb existing civil service protections or really create very much that is new at all.

However, what they do for you and to you is mandate the government-wide exercise of existing flexibilities in the civil service laws that have always been there and which some forward-looking agencies have been doing for decades. You have to read the Executive Orders themselves to get the full feel of what is being ordered for the Executive Branch by the President. However, until you get a chance to do that, here’s a summary of what you need to start doing now to be in compliance with the orders:

Unacceptable Performance

The White House has concluded that a number of agencies have not been acting fast enough to deal with non-performers. In our FELTG opinion, the White House is right. If you are a management official in human resources or legal in a federal agency, you are to immediately change your practice to conform with the following:

  • The Executive Order drops the concept of an “improvement” period and instead has begun to use the legally-correct term of “demonstration” period. It takes much less time for an employee to demonstrate whether he can do his job than to see if he can improve in doing his job. This movement in concept corrects the error that OPM made back in the early 80s when it created the acronym “PIP” (first, Performance Improvement Period, then Performance Improvement Plan) in reference to the period mandated by law for a demonstration of acceptable performance. Forward-looking agencies such as HHS have already moved in this direction by dropping the acronym “PIP” and describing the period as an “Opportunity to Demonstrate Acceptable Performance.”
  • In understanding that the period is to “demonstrate,” not necessarily “improve,” the EO requires agencies to limit these periods to 30 days. That change will be a great relief to federal supervisors who often are told that the performance period should be 60, 90, or even 120 days in length. One participant in a FELTG seminar earlier this year told us that his HR advisor advised him that the period had to be six months long. Woof. No wonder so many supervisors think it is hard to fire poor performers.

This mandate for a government-wide approach to poor performance is not a curbing of employee protections. The protections are the same as they have been since 1979. It is simply a recognition that some agencies have strayed from the concept of the efficient handling of a performance problem and directing that they focus on getting the job done more quickly while simultaneously honoring the statutory protections of most all federal employees.

Adverse Actions

We use the Unacceptable Performance procedures for holding employees accountable for meeting their performance standards. We use the Adverse Action procedures for holding employees accountable for adhering to workplace rules. The EOs require that agencies change their procedures for firing employees who engage in misconduct in the following manner:

  • Make it clear that while progressive discipline is a factor to be considered in whether an employee should be fired on the occasion of new misconduct, it is not a mandatory requirement to engage in progressive discipline prior to removing someone. Although this has always been the law, some in the media have misunderstood the concept and have claimed that civil servants cannot be fired without progressive discipline.
  • Clarified that past disciple is an aggravating factor in selecting a penalty for current misconduct even if it is for a different type of misconduct. For example, a prior Reprimand for disrespectful conduct would be just as aggravating when selecting discipline for the subsequent misconduct of AWOL as would be a prior Reprimand for AWOL. Recent MSPB decisions issued by Board members appointed by the previous administration have discounted prior discipline if it was different from the current misconduct. The EO corrects that unwarranted drift in our case law.
  • As many of you readers know, the majority of Board members serving in the previous administration came up with a concept that drove us all crazy: The Terrible Trilogy. Those three cases issued in 2010 abandoned decades of case law that held otherwise and ordered that agencies discipline all employees at the same level for the same misconduct throughout the agency. Given that this is a physical impossibility and not helpful at all in holding employees accountable, we all suffered mightily. Goodness knows this newsletter whined long and loud about the damage being caused by the Trilogy. The EO makes it clear that this is not to be the rule in the future. Deciding officials will be able once again to discipline employees independently, not restricted by the discipline meted out to other employees by other deciding officials.
  • When a supervisor decides that an employee should be fired for misconduct or performance, she has to give the employee notice that she is proposing the removal. The employee then has at least seven days to defend himself by responding to the notice. The deciding official can issue a decision any time after the employee responds. Unfortunately, some agencies have been waiting weeks, months, and occasionally years to issue these decisions. Now these decisions must be issued within 15 business days.
  • The 7-day notice period, above, can be extended to no more than 30 days under the EO.

Labor Relations

Two of the three EOs deal specifically with employees in a collective bargaining unit. We’ll address those significant changes in a later article.

For those of you who have been regular readers of our FELTG newsletter and have attended our FELTG seminars over the years, these changes will look very familiar. We have routinely cajoled, begged, and lectured agency HR and legal officials to approach accountability in this manner. We have strongly criticized MSPB when it has varied from these core concepts. Have the President’s advisors been reading the FELTG newsletter? Have they consumed our textbook UnCivil Servant? Have they sat in our seminars, hiding their identities, and soaking up all this good stuff as we dished it out? Or, maybe they actually contacted us and asked for our opinion as to how things could be improved within the current system without the need for new laws?

Well, aren’t you the inquisitive one, My Pretty. Unfortunately, some things have to remain private, for national security reasons. However it happened, you’d better start coming to our seminars and tuning into our webinars if you want to be on the cutting edge of the evolution of federal employment law. Whether we are steering it or just guessing where its going, there’s nobody else out there who can get you this close to the future of our business. Wiley@FELTG.com.

Read the full text of the EO here.

Join FELTG for a webinar on the new EOs on June 13. Register here.

Think About This Before It Happens to You

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By William Wiley, May 22, 2018

MSPB just established a new policy. You need to know it and decide what to do before you are called on to act on short notice.

As most all Board practitioners are aware, MSPB HQ has effectively been shut down since January 6, 2017. On that date, one of the two remaining Board members unceremoniously resigned before her term was up, leaving the Board with only one member and thereby without a quorum. MSPB quorums are essential to the Board being able to act. The three-membered Board, comprised of Presidential appointees, gets involved when either the firing agency or the fired former-employee files a Petition for Review (PFR) challenging the initial decision of an MSPB administrative judge (AJ). A single member cannot issue a final Opinion and Order to resolve a pending PFR. It takes two to tango; it takes two to adjudicate PFRs.

Many actions related to case handling taken by the Board require agreement among the Board members. No single Board member, with rare exception, has the independent authority to do much when it comes to the resolution of PFRs. The challenge this approach has caused has been magnified by the day-by-day growth of the pending PFR decision backlog for the past 16+ months. If you are a wrongly fired employee, every day that your case is not resolved is potentially one more day you don’t pay your rent, or eat, or can’t hold your head up at dinner with the family.

Hypothetically, the judge ruled against you in the fall of 2016. You filed your PFR challenging the judge’s misplaced initial decision, and began to wait for a Board decision on your appeal. In normal times, that wait would have been around six months – sometimes a bit more, sometimes a little less. However, being the smart appellant you are, about last spring you begin to realize that you aren’t going to be getting a decision on your PFR anytime soon. You decide that enough is enough, and file a motion to withdraw your pending PFR, formally asking the Board to dismiss your appeal. Better to be out of that mess than stuck there indefinitely, you might be reasoning.

But, wait! Your PFR is pending with a quorum-less impotent Board. If MSPB lacks the legal authority to issue any decisions, arguably it lacks the legal authority to grant your motion to dismiss your PFR. That two-to-tango thing might well apply to cases pending at MSPB HQ whether they are to be dismissed as withdrawn or ruled on in a decision. Maybe the single remaining Board member just can’t do anything.

Well, perhaps relief is in sight. MSPB just announced a policy that even with just a single member seated, the Board’s Clerk can grant motions to dismiss pending PFRs if:

  • The motion to withdraw is not based on a settlement;
  • It is unopposed by the other party; and
  • It is timely filed.

It appears that there might be some light at the end of the tunnel for parties to PFRs who are tired of waiting on a decision. But, wait! (Again.) What does “timely filed” mean? There’s nothing in the Board’s regulations that sets a time limit for filing a Motion to Withdraw. Will the Clerk use the time limits for filing the initial appeal documents? That doesn’t help the poor schleps who have been sitting at the Board for over a year, waiting on their government to act. And what does a withdrawn PFR do for the withdrawing party? Can an appellant whose PFR is withdrawn now file with the US Federal Circuit Court of Appeals, thereby challenging the AJ’s decision? Aren’t the time limits for that based on the date of the judge’s initial decision or a Board final Opinion and Order?  The drop-dead date for appealing to the Federal Circuit based on the judge’s initial decision has long passed in most cases, and a Clerk’s dismissal based on a Motion to Withdraw doesn’t feel like a final Board Opinion and Order. Finally, is this new policy even legal? Lordy, I hope so, ’cause if it’s not, we’re looking at some pretty messed up cases should this thing be overturned a couple of years down the road.

It appears to us here at FELTG that there are some questions yet to be answered relative to this new policy. However, it is a policy in force right now, so be aware and be prepared. For example, if you are an agency representative in a pending PFR case, will you object if the appellant who filed the PFR asks that it be dismissed? How would a dismissal be to your advantage?

Alternatively, what if the judge set aside your removal in the initial decision and you filed the PFR? Why would you withdraw your appeal? You’ve already restored the employee to interim paid employment. Is it worth it to give up your chance to be heard by a Trump-appointed Board to roll the dice and see if OPM and DoJ will support your appealing to the Federal Circuit? Even if so, will the Federal Circuit find your appeal there to be timely filed?

The leadership of the Board is to be commended for trying to do something (anything) to reduce the pain being suffered by agencies and appellants who are stuck in the backed-up toilet of PFR adjudication. Our FELTG guesstimate is that as of today there are about 1050 cases sitting there at Board HQ on M Street NW, waiting on just one more signature by a new member to be resolved. Although the President in March nominated two new Board members who will resolve the no-quorum dilemma, the Senate has not scheduled the predicate hearing necessary to get a vote on the nominees. And as all you Hill Observers out there know, if it doesn’t happen by mid-July on Capitol Hill, it ain’t gonna happen until the frost is on the pumpkin in the fall.

Sometimes we have more questions than answers, and this is one of those times. But that doesn’t mean you can wait on the answers. Get those great minds at your agency (or in your union) on a teleconference, discuss the pros and cons of withdrawing pending appeals, and make a smart decision about to what to do now, before it’s necessary to act. Wiley@FELTG.com

Room for Improvement at MSPB

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By William Wiley, May 16, 2018

As many of you readers know, MSPB has been under a heavy workload for many years, with decisions sometimes taking too many months (and even years) to get out. We’ve written in this space before as to how the Board could streamline its final Opinions and Orders. Today we take a look at a typical administrative judge’s Initial Decision, one that could benefit from some trimming and focus.

First, you might want to read the initial decision: Avila v. Agriculture, MSPB No. SF-0752-17-0488-I-1 (February 26, 2018).  If you do, you’ll find that it took the judge 24 substantive pages to do what we’ve done below in two. You’ll find some paragraphs in the decision to be over two pages long, with all kinds of extraneous information thrown in; e.g., the color of the trellises on which the marijuana plants were growing, the cost of the overflights, and the suggestion that a “criminal disruption” had been contemplated. Most distractingly, you’ll have to get to page nine before the judge bothers to tell you what the charge is.

Lengthy decisions like this take a lot of time to write and review on appeal. By cutting to the chase, the Board’s judges could save time, get these things issued more expediently, and still provide the appellant fair treatment. As importantly, it helps us all capture the big issues without being distracted. For example, in the original decision, you’ll see a lot of grand citations to grand principles of law, and a reasonable conclusion. However, what you’ll find missing is an analysis of the gravamen of the appellant’s argument: should she be held responsible for marijuana in her home if it was not her marijuana? Focused writing might have surfaced that issue for resolution.

So, here’s our FELTG Initial Decision, if we were in charge of how these things are written:

On May 12, 2017, the Forest Service removed Catherine A. Avila (appellant) from her position as Forestry Technician, GS-462-9 based on a single charge of “Conduct Unbecoming a Federal Employee.” The specification on which this charge was based describes the uncontested fact that marijuana was being grown on her property.  This appeal followed her removal. As explained below, I AFFIRM the removal.

ANALYSIS AND FINDINGS

Significant among the appellant’s duties was the requirement to work independently enforcing federal laws and regulations relative to the forest in which she worked. On April 29, 2015, Forest Supervisor Carlson issued a written reminder to the appellant and others that the possession of marijuana is illegal under federal law, and that law applies to all Forest Service employees regardless of contrary state laws. Subsequently, on July 19, 2016, Special Agent Mayo observed about a dozen marijuana plants in the backyard of the appellant’s home. In August 2016, Carlson again reminded employees that Forest Service employees cannot grow marijuana at home even if the employee’s spouse has a medical marijuana prescription. Subsequently, on September 27, 2017, Special Agent Mayo again observed about a dozen marijuana plants growing in the appellant’s backyard.

Following the second observation, an agency investigator questioned the appellant. In this interview, the appellant admitted:

  • She jointly owned the home in which she lived with her husband.
  • She knew that marijuana was being grown there.
  • People came to her home to purchase marijuana.
  • Her husband processed the marijuana in their home and transported it in their shared car.
  • The money from the sale of the marijuana was kept in the home.

Throughout the interview, the appellant asserted that the marijuana was not hers, but her husband’s. At hearing, the appellant attempted to recant part of her statement, asserting that she did not know whether there was marijuana was on her property or how her husband transported it. I find the appellant’s hearing testimony to be wholly unpersuasive and improbable. Hillen v. Army, 35 MSPR 453 (1997). Therefore, I SUSTAIN the charge.

PENALTY

The appellant is known throughout the community as an employee of the Forest Service. Possession of marijuana at her home affects her status and reflects negatively on the agency. Her work requires her to work independently enforcing federal laws and regulations. The fact that she continued in her illegal activities after being warned twice demonstrates exceedingly poor judgment. She has been previously reprimanded and suspended. Her actions reflect that she does not have an appropriate sense of how federal law applies to her. Therefore, I conclude that the agency’s selection of the penalty of removal is reasonable.

AFFIRMATIVE DEFENSES

The appellant claims sex discrimination in that she was not offered the opportunity to enter into a Last Chance agreement as were three male coworkers. However, such differential treatment is justified in that none of the male coworkers had previously been disciplined. Separately, although the comparator male employees had been involved in marijuana-related offenses, none had engaged in the more serious aspects of the charge in this case of cultivation, distribution, and sale of marijuana from their homes. As the appellant has presented no other evidence of sex discrimination, I find she was not the subject of sex discrimination.

The appellant also claims age discrimination. However, as she has offered no evidence of such mistreatment, I find she has not proven that she was the subject of age discrimination.

The removal is AFFIRMED.

The very earliest Board decisions were very short; some just a page. Over the years, MSPB and its judges have added more and more legal and factual verbiage to decisions, without any commensurate benefit. If MSPB wants to be around another 40 years, perhaps it should consider going back to the writing style of the good old days. Wiley@FELTG.com

Final Agency WHAT?

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By Deborah Hopkins, May 16, 2018

Remember in grade school, learning about homonyms? In case you don’t remember, homonyms are words which sound alike or are spelled alike, but have different meanings. Think to, too, and two; or they’re, their and there. It’s not always a fatal error to use the wrong word, but it can make you look pretty silly.

Lots of terms that sound alike, but have different meanings, get used in our federal employment law world – and while people may be tempted to use these terms interchangeably, sometimes it’s a mistake to do so. Today, let’s clear up any potential confusion over these common EEO terms:

  • Final Agency Decision
  • Final Agency Order
  • Final Agency Determination
  • Final Agency Action

First up is the Final Agency Decision (FAD), which refers to a written decision on a complaint of discrimination that is made by the agency’s EEO Office, without a hearing before an Administrative Judge. The agency will issue findings based on the claims raised, and if discrimination is found, will issue a remedy. This may include agency decisions to dismiss claims, or agency decisions on the merits. A FAD is appealable, by the complainant, to the EEOC. Agencies are not permitted to appeal their own FADs (though some would like to!).

If complainant requests a FAD, fails to request a hearing, or files an untimely hearing request, the agency must issue Final Agency Decision within 60 days. 29 CFR § 1614.110(b).

On to the rest. EEOC Management Directive 110 clarifies these terms for us:

A Final Agency Order refers to a decision by an agency to implement or not implement an Administrative Judge’s decision, which is appealable to the Commission. That’s right, an agency can choose not to implement all – or any part – of an AJ’s decision if it disagrees with the finding, the amount of damages, or any other remedy therein. If the agency’s final order does not fully implement the AJ’s decision, the agency must simultaneously appeal to the Commission with its reasons explained.

A Final Agency Determination refers to an agency’s determination about whether there was a breach of a settlement agreement that is appealable to the Commission. For example, the agency may make a determination the complainant breached the settlement if, as part of the settlement the employee agreed to withdraw all pending EEO Complaints but then did not do so.

A Final Agency Action refers to an agency’s last and, unsurprisingly, final action on a complaint of employment discrimination. The final agency action may be in any of several forms:

  • a final agency decision,
  • a final agency order implementing an Administrative Judge’s decision, or
  • a final determination on a breach of settlement agreement claim.

Hope this helps curb some of the confusion around these similar, but non-interchangeable terms. Hopkins@FELTG.com

He Said, She Said – But What Did They Say?

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By Meghan Droste, May 16, 2018

We all know people who are able to make a decision right away—they can pick what to order after a quick glance at a menu, they can buy the first item they see, and they can plan a vacation on the fly.  I am sure those people are lovely people; they are certainly lucky in my perspective.  But they are not me.  I will spend hours researching online before I buy something.  For an upcoming trip, I bought two guide books and a country-specific etiquette book, and I am working my way through them before making any plans.  I need a lot of information before I can make a decision.

The EEOC is at least somewhat like-minded.  Agencies are required to “develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint.”  See 29 C.F.R. § 1614.108(b).  This means that there must be enough information from which a reasonable factfinder can determine whether the agency violated the law.  See MD-110, Ch. 6, §IV(C).  Investigations may take different forms, but generally an agency must interview the relevant witnesses and collect the necessary documents.  The Commission’s recent decision in Mari R. v. U.S. Postal Service, EEOC App. No. 0120160377 (March 29, 2018), is a good example of why this is important.

In the Mari R. case, the complainant alleged that her first-line supervisor sexually harassed her over a period of at least three months.  The harassment included vulgar comments and sexual gestures.  The complainant testified that the union president warned her in advance that the supervisor had a history of sexually inappropriate behavior towards female employees.  She also testified that at least one other employee witnessed the supervisor’s remarks to her, and two other employees told her that the supervisor had increased the workload of the last female employee who turned down his sexual advances.  The supervisor denied the complainant’s allegations.

In its final agency decision, the agency concluded that the complainant did not prove that the agency had subjected her to discrimination.  On appeal, the Commission vacated the agency’s decision and remanded the complaint for a supplemental investigation.  The Commission noted that the investigator only interviewed the complainant, the responsible management officials, and other management witnesses.  The investigator failed to interview any of the six witnesses the complainant identified.  These employees either witnessed the supervisor’s comments and gestures towards the complainant or were previous victims of the supervisor.  There was no explanation for the decision not to interview the witnesses.  The Commission found that the investigator’s decision not to conduct these interviews “unfairly restricted [the complainant’s] ability to prove that she was subjected to discrimination . . .”  Without information from both sides, the Commission did not have enough information to determine whether the supervisor had actually acted as the complainant alleged.

Keep these lessons in mind as your agency investigates complaints, and make sure the factfinder has enough information to make an informed decision. Droste@FELTG.com

[Wiley Note: The quality of agency investigations, or lack thereof, is becoming a bigger and bigger issue on appeal. The first case to hit us between the eyes was Whitmore v. Labor, 680 F.3d 1353 (Fed. Cir. 2012). If you attend our Workplace Investigations Week seminar, you’ll hear us talk about the mistake of using a biased investigator when investigating misconduct. More recently, in a 120-page initial decision, an MSPB administrative judge mitigated the removal of a highly-publicized employee (think 60 Minutes public) based in large part on perceived investigator inadequacies. Chen v. Commerce, CH-0752-17-0028-I-1, (April 23, 2018)(ID). If you are drifting along old-school, thinking that just about anybody who is upright and convenient is capable of conducting a workplace investigation that will withstand EEOC, MSPB, or federal court scrutiny, you absolutely must read these two decisions.]

Ten Ways to Provide Bad Training

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Here at FELTG, we are very fortunate to work with some of the best trainers in the business. The following guest article is written by one of them and is reprinted with the permission of the author.

By Michael Vandergriff, May 16, 2018

After training managers, supervisors, and employees for four decades, I think I may have seen it all.  This may not be the top ten tactics for delivering bad training, but they are contenders.

To provide bad training:

Do Not Parse Your Employees by Level or Function

Missile Shots and Garbage Disposals.  In a class on Project Management in the ’90s, a participant on the left said that my prescription was at the heart of the rescheduling of missile shots.  Five minutes later, a participant on the right expressed his challenges around gathering his tools to repair in-sink garbage disposals.

Contract with a “Memorex” Trainer

Rookie Mistake.  “Green” trainers lack breadth and depth of knowledge and experience.  A linear delivery can be highly polished, smoothly delivered, and have all the impact of a senior presentation in a business school.  Also, questions might be a problem.

Do Not Promote Your Training

How does it Play in Peoria?  About 20 years ago, I was contracted to deliver a day of training for the City of Peoria. Arriving for the training, I introduced myself to the new Director of Training.  He replied, “Who are you, and what training?”  The prior occupant of the job had left hastily to take an opportunity in Chicago, leaving a non-class in his wake.  No announcements.  I asked the new training director what he knew about training and he replied that he knew nothing.  Inviting him to take a seat, I delivered an overview of employee training and development.  When I am asked about the smallest class I have ever addressed, I reply, “Half a day for zero participants.”

Allow Critical Decisions to Be Made by the Powerful and Ignorant

Training Killer.  It was the early 1980s and I had developed a reputation as a competent multi-topic presenter at the California State Training Center in Sacramento.  The center was not in Sacramento, as such, but was across the Sacramento River, in Bryte.  A lot of residents were elderly Russian immigrants whose yards were being overrun by prostitutes the Sac Police officers were chasing out of downtown.  Also, the entry to the center was often blocked in the morning by someone sleeping it off.  My “halo effect” was not fueled by competence as much as adrenaline. To borrow from NASA, failure was not an option.  I was proud that, in my mid-twenties, I was invited to take the lead on the state’s newest $80,000 program: Planning Problem Solving, and Decision Making (and “situation evaluation” – a section not in the title).  The design was very intense with a heavy case focus, a lot of interaction, and a maximum number of ten students. I opened the door of the classroom to meet my first ten students and was greeted by thirty state analysts. Some doofus with the authority saw the class size and reasoned that adding twenty students was more cost-effective.  Four days later, I crawled out without a failure (never acceptable) and, within a year, was living in New Mexico.  California has not fared well in many ways since that time.

Build a Class Around Your Problem Employee

Get a Grip.  Years ago, I delivered a conflict class to an organization hoping they could fix their problem employee by placing him in a class. Essentially, all the coworkers were there as window dressing; a behavior change of Arnold (one might call him “Ahhnold”) was the goal. Arnold sat at the back table for the entire session and grimaced.  Proud of his physique, he would exercise his forearms under the table with a wrist grip. A quick read of Arnold led me to deliver “straight up” training, ignoring the barely audible noise of the grip.  The nonverbals indicated he needed a long-term relationship with someone in a helping role.  He also needed to know that his cheap exerciser would soon deliver him to carpal tunnel damage and the inability to pick up a pencil.

Send a Soon-to-Retire Employee to Class

Shameful Sendoff.  Over the years, I have interacted with seminar participants who have revealed they are within a month or two of retirement.  I try my best to hide my reaction.  With tuitions as high as $5,000, this allocation of training funds is wrong.  To get a return on the investment, I would recommend that the trainee be at least three to four years away from retirement, unless it is skill training that is essential to completion of work.

Allow a Small Segment of Your Organization to Burn All Your Training Funds

No Goofy Training.  A Director of Training, David, was under intense pressure to spend the years’ training budget for a specific level to train one person.  The generals’ secretary wanted to get customer service training from a vendor that was famous for their outstanding customer service program.  David labelled it “goofy” and held the line.  He had an entire organization to serve.

Get a Trainer Who Can’t Handle an Unhappy Participant

Unhappy Camper.  I entered a classroom early and spoke with the Program Director, John, who told me we had a malcontent in the seminar, Dobie, who hated every presenter.  Rookie presenters usually avoid the malcontent and work the other side of the room.  I looked at Dobie’s nameplate and was familiar with his organization.  When he entered, I spoke briefly with him, asking him if he knew the people I had met while speaking at his national conference.  He smiled, and we discussed our mutual contacts.  In an opening example, I walked up to Dobie and gave a hypothetical in which Dobie and I had experienced a disagreement. At the first break, Dobie approached John and said, “This guy is pretty good.”  He simply needed a bit of attention…

Don’t Prepare for the Upcoming Training

Totally Unprepared.  I delivered three years of training on Team Facilitation and Team Tools to a huge organization under intense pressure.  Unprecedented, I had two Friday cancellations for classes to begin the following Monday, within two months!  I gained more insight into this location when USA Today printed a two-page story about the mayhem at this facility.  After that, I travelled to a “flagship” location on the west coast to train.  Arriving early, I walked into the training room.  No tables.  No chairs.  No flipcharts.  No materials.  Wondering if I was in the wrong place, I walked back into the hallway to see that someone had placed a sticky flipchart page adjacent to the door.  In a very pale pastel, it announced, “Team Faccion.”  In contrast, I trained later at a sister facility in New Orleans.  In my four decades of training, I have rarely experienced a facility as prepared on all fronts. The training coordinator was boo-coo. The Boy Scout motto?  Be prepared.

Use a Middleman to Acquire a Trainer

Not Worth a Dime.  Middlemen take a cut.  Sometimes they take an arm and a leg.  A prominent training vendor carves out 90% for overhead, leaving 10% for the trainer. I am relaxed about the opportunity for newcomers finding a path to break in. The question is, are you open to hiring a ten-percenter who owns a fresh diploma with wet ink?  The non-value-added aspect of the overhead is a topic for another day.  Also, piercing the veil to determine that your training dollars are well spent is problematic.  The only path may be more work for you as you seriously evaluate the presenter being offered.  It is important for you, though, to avoid being fleeced.  Some training-vendor emperors have no clothes. Info@FELTG.com

Tips from the Other Side: Developing a Record on Joint Employment

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By Meghan Droste, May 16, 2018

As the regular readers of this column know, I generally represent employees, both in the federal and private sector.  In my time I have also represented federal agencies, so I have seen how resources can be stretched thin at times.  Agencies often have too many cases and simply not enough time to handle them.  Faced with these circumstances, I can understand the temptation to dismiss complaints as early as possible.

As a complainant’s counsel, it seems that when there is a joint employer issue, agencies automatically dismiss the case as soon as they receive the formal complaint.  This means, of course, that I have to file an appeal.  When briefing the issue, there is very little to discuss because the agency has not created any record.  This makes it more difficult for me to support my position that the agency is a joint employer, but it makes it nearly impossible for the agency defend its position that it is not.

The question of whether the agency is a joint employer turns on an analysis of several factors that come from Ma & Zheng v. Department of Health & Human Services, EEOC App. No. 01962389 (May 29, 1998).  This is a very fact-specific inquiry, focused on factors such as who assigns work to the complainant, who approves leave requests, and who selected and/or removed the complainant from the position.  Too often, agencies look only to the language of the contract between the agency and contracting company—which inevitably states that there will not be an employee-employer relationship with the agency and the contractors—to support the position that the complainant was not an employee.  Agencies reach this conclusion without any investigation into the other factors.  The Commission then inevitably concludes that the record is insufficient and remands the complaint to the agency for investigation.  A search of Commission decisions reveals several appeals with this exact outcome.  See, e.g., Alan F. v. Dep’t of Agric., EEOC App. No. 0120161089 (March 5, 2018); Complainant v. Army, EEOC App. No. 0120150809 (June 12, 2015); Complainant v. Dep’t of State, EEOC App. No. 0120131112 (October 17, 2014); Tolbert v. Dep’t of Defense, EEOC App. NO. 0120113572 (January 24, 2013).

I recommend that agencies carefully consider whether to dismiss a complaint for failure to state a claim in potential joint employer cases.  While it may seem like a time saver, it will likely end up taking up unnecessary resources in an appeal the agency will not win.

If you have specific questions or topics you would like to see addressed in a future Tips from the Other Side column, email them to me: Droste@FELTG.com.

Successful Management of Employees with PTSD in the Workplace

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By Shana Palmieri, May 16, 2018

With 8 million adults experiencing Post-Traumatic Stress Disorder (PTSD) in a given year, 7-8% of adults have PTSD at some point in their lifetime, and rates as high as 20% in a given year for veterans, chances are you have employees with PTSD – or at a minimum, employees who are suffering from symptoms of PTSD.

First, what is PTSD?

Post-Traumatic Stress Disorder is classified as an anxiety disorder which changes the body’s reaction to stress, affecting stress hormones and specific parts of the brain.  PTSD can develop in individuals that have experienced a life-threatening event (such as combat), a natural disaster, sexual assault, a car accident, or even witnessing a life-threatening event.

It is important to note that not all individuals who experience a life-threatening event will develop PTSD.  In fact, 70% of adults in the U.S. have experienced some type of traumatic experience in their lifetime; that is 223.4 million of us!  Of that 70%, only 20% will go on to develop PTSD, or approximately 44.7 million people in the U.S.  At any given time, around 8% of people in the U.S. have PTSD. That translates to 24.4 million people, roughly the population of Texas.

Individuals that develop PTSD as a result of experiencing life-threating events develop specific symptoms, to include the following:

  • Intrusive thoughts, nightmares, flashbacks, emotional distress to traumatic reminders, physical reactivity to traumatic reminders
  • Avoidance of trauma-related stimuli
  • Exaggerated self-blame, social isolation, difficulty connecting with others
  • Irritability, difficulty sleeping, fatigue, heightened startle reaction, difficulty concentrating, hypervigilance

What does PTSD in the Workplace Look Like?

PTSD is much more than an individual reacting to loud noises that sound like gun shots or bombs going off.  The interactions that trigger PTSD symptoms can be subtle and difficult to understand for individuals who have not had the experience themselves. It could be something as simple as someone putting their hand on a colleague’s shoulder.  What may be a non-threating gesture to one person, may trigger a strong emotional and physical reaction in another individual as a result of past experiences.  A supervisor that has a “strong tone” may come across aggressive or trigger an employee with a history of verbal and physical abuse.

It is important for supervisors, managers and human resources staff to listen and openly communicate with employees to ensure a work environment that creates a place where the employee feels safe and has the opportunity to be successful in their position.  

Is PTSD Real?

There is an unfortunate common misperception that PTSD is not a real disorder.  Research has demonstrated both through changes in the brain and changes in stress hormones that in fact, people with the diagnosis of PTSD have significant brain and hormone changes compared with individuals that do not have PTSD.  These changes are directly related to the symptoms individuals with PTSD experience. So yes, PTSD is very real and so are the symptoms individuals are experiencing as a result. An individual with PTSD has a disability and is legally entitled to the reasonable accommodation process.

How can Employers Create Opportunities for Success for Employees with PTSD?  

  • Ensure all supervisors, managers and human resources staff are educated on the symptoms of PTSD and the potential impact on the workplace.
  • Learn to recognize the warning signs that an employee is struggling and provide support and guidance to help them access treatment options.
  • Encourage and support employees in accessing EAP and appropriate mental health services.
  • Implement programs through HR or EAP that promote mental wellness and stress reduction.
  • Engage in the interactive process to determine what workplace accommodations need to be made for an individual with PTSD.

For more on this, attend FELTG’s seminar Federal Workplace Challenges: Behavioral Health Conditions, Threats of Violence, and Coworker Conflicts July 17-19 in Washington, DC. Info@FELTG.com

Bullied by the Union – What Can You Do?

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By Deborah Hopkins, May 16, 2018

Questions, we get wonderful questions from our wonderful class participants. This one combines the very contemporary issue of workplace bullying with the old-as-the-hills concept of union official robust debate:

Dear FELTG,

Where can I find information about addressing union reps’ rude, unprofessional, and hostile behavior in emails, in-person, and on the phone when performing day-to-day representation duties? I am aware of the robust debate exception to misconduct, but this behavior is not during negotiations, creates a hostile work environment and any non-union employee would be disciplined.  As an employee, I should not have to tolerate this, and it interferes with my work.  Agency LR staff says the union has the right to act the way it does.  I want the union to show me respect like I show them. I want their behavior to stop and the agency to stop allowing it. Please advise.

Thank you, Bullied by Union

Here’s the FELTG response.

Dear Bullied,

You may not like the FELTG answer, but based on the hypothetical you’ve described, your LR staff is correct. Robust debate is the term we use to describe the rough speech and raised voices that union representatives are allowed to exhibit when performing representational duties – not just during negotiations. This “uninhibited, robust, and wide-open debate,” is protected activity and may include profanity and shouting, according to the U.S. Supreme Court. National Association of Letter Carriers v. Austin, 418 U.S. 264 (1974).

Congress intended to permit union-related debate, even if it rose to the level of “unrestrained” or “uncivil.” Language used during union-related discussions may be “intemperate, abusive and insulting.” Old Dominion Branch, NALC v. Austin, 418 U.S. 264 (1974).

To help clarify this, here are a few examples of protected activity:

  • When the supervisor refused to make an overtime decision, the union president said, “Fuck you. I don’t give a fuck.” The supervisor had the employee removed from the workplace. FLRA held that the supervisor committed a ULP. FAA v. NATCC, 64 FLRA 419 (2010)
  • Calling management a “cheap son-of-a-bitch,” Groves Truck & Trailer, 281 NLRB 1194 (1986)
  • The statement, “Management is a bunch of assholes,” UPS, 241 NLRB 389 (1979)
  • Referring to an employee as an “Egotistical fucker and a fucking liar,” Union Carbide, 331 NLRB 356 (2000)

Pretty robust, wouldn’t you say?

There are some limits, though. A union rep may be disciplined for “robust debate,” but only in two circumstances:

  • If in doing so the union representative engages in flagrant misconduct, or
  • The behavior exceeds the bounds of protected activity.

5 USC 7102.

Here are a couple of examples of activity that is not protected and that is cause for discipline:

  1. A union officer interrupted an office birthday celebration and called the event a “blatant and ridiculous display of management’s power.”
    • She later complained about the dress code, called a district manager “ridiculous,” and shouted when talking about her supervisor.
    • The agency suspended her for two days for inappropriate, disrespectful, and disruptive behavior.
    • This was not robust debate because she was not acting in her union capacity.

AFGE, Local 1164 and SSA, 110 FLRR-1 128 (2010).

  1. A union steward was suspended for two incidents of improper behavior:
    • He spoke forcefully to an HR specialist with balled fists and referred to violence against her, making her feel “intimidated and threatened”
    • He called a supervisor “Uncle Tom” after the supervisor questioned his whereabouts.

He was not acting in his official capacity – and even if he were, robust debate does not include protection for racial slurs.

AFGE, Local 987 and U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Ga., 109 FLRR-1 79 (2009).

Factors to consider in determining whether language exceeds the bounds of protected status:

  • Does the union have a legitimate concern?
  • Was the workplace disrupted?
  • Who provoked the incident, supervisor or union rep?
  • Was the outburst spontaneous?
  • How extensive (and loud) was the profanity?
  • Who else overheard the exchange?

Defense Mapping Agency, 85 FLRR 1-1018 (1985).

There’s a different standard for acceptable conduct among employees and union reps engaging in union activity. The bottom line is, if the rude and disrespectful behavior occurs during representational duties, unless it’s racist or sexist, it’s probably protected and you can’t stop it from occurring. It’s unfortunate you’re dealing with such a tumultuous situation, but legally there is no recourse.

Good luck and keep your head down. Hopkins@FELTG.com