A Primer on Federal Personnel Law

1. EEOC Executive Leadership Conference A Primer on Federal Personnel Law Bill Bransford Shaw, Bransford & Roth, PC www.shawbransford.com

2. T E N D E N C Y C O R R E C T

3. 5 U.S.C. § 7513 • …an agency may take an action (suspension of more than 14 days, demotion or removal) • Against an employee (non-probationary) • Only for such cause as will promote the efficiency of the service

4. Efficiency of the Service • Elastic concept encompassing nexus • Showing “Efficiency of the Service” is part of the agency’s burden of proof in adverse action cases

5. Efficiency of the Service In dealing with any problem employee, supervisors should focus on the question of why correcting the problem will make the agency more efficient and/or make it easier to accomplish the mission.

6. Nexus can be shown in eitheron duty misconductORoff-duty misconductIFthere is a link to the agency’s mission and/or efficiency.

7. Common Barriers to Dealing with Problem Employees • Will file grievance or EEO complaint • Too much time and documentation • Process is too complicated • Have to overcome past practices • Problem will go away if you ignore it • Lack support from upper management

8. Employee Appeals • Merit Systems Protection Board (under DHS system, streamlined process at MSPB) • EEO Complaints • Union Grievances

9. MSPB Appeal Process Initiate Appeal at MSPB within 30 Days  Discovery  Hearing  Decision  Appeal to full Board (PFR)  Decision  Appeal to Court of Appeals for the Federal Circuit (PFR)

10. Manager’s Role in MSPB Process • Agency has burden of proof (except on affirmative defenses) • To provide evidence to support reasons for action • To rebut employee’s affirmative defenses

11. Federal Sector EEO Process EEO Counselor contact within 45 Days ê EEO Counseling for 30-90 days ê Formal complaint filed if unresolved ê Agency investigates within 180 days ê çEmployee elects forum è ê EEOC ê Discovery ê Pre-hearing settlement ê Pre-hearing conference ê Hearing ê Decision ê Appeal to Commission ê Court Court ê Civil Action Filed ê US Attorneys Answer ê Discovery ê Settlement Negotiations ê Pre-Trial ê Trial by Jury ê Appeal to higher court Final Agency Decision ê Court

12. Anti-Discrimination in Employment • Employee Protected Categories • Race • Color • Gender • National Origin • Religion • Age (40 or older) • Disabilities • Participating in EEO process • Opposing discrimination • Categories Not Protected • Personal hygiene • Personal Appearance • Personality • Capabilities • Attitude • Employer Conduct Covered • Hiring • Firing • Failing to promote • Demotion (lost pay) • Reassignment (significant) • Material loss of benefits • Hostile work environment

13. Manager’s Role in EEO Process Employee has burden of proof • To support legitimate non-discriminatory basis for action complained of

14. Grievances Union: • Governed by collective bargaining agreement between union and agency Non-Union: • Governed by agency regulations

15. Manager’s Role in Grievance Process Agency has burden of proof • To provide evidence to support reasons for action • To rebut employee’s affirmative defenses

16. Office of Special Counsel • Investigates PPP’s • Seeks Disciplinary Actions • Seeks Corrective Actions • Emphasis on whistleblower reprisal

17. Manager’s Role in OSC Matter Burden of proof depends on type of case. • To provide evidence to support challenged action • To rebut claims of PPPs

18. Manager’s Toolbox • Human Resources/Employee Relations • General Counsel’s Office Why use these tools?

19. Alternative Dispute Resolution • Agency program required by EEOC Regulations for EEO Cases • Incorporated into grievance process • Opens lines of communication between the parties

20. Preponderance

21. Preponderance of the Evidence The degree of evidence the administrative judge (or other fact finder) would accept as sufficient to find that a contested fact is morelikely true than untrue.

22. An employee can defend against a disciplinary or adverse action by disputing the agency’s evidence and by raising anaffirmativedefense.

23. Affirmative Defenses * must be proved by employee * • Prohibited Personnel Practices • Including: • Discrimination • Whistleblower Reprisal • Harmful Procedural Error • Mistake of Law

24. Affirmative defenses must be proven by a preponderanceoftheevidence.

25. Documentation: Why Do It? • Creates contemporaneous record • Serves as a memory jogger/refresher • Helps HR/Supervisor determine if/when follow-up action is necessary • Can be evidence to support subsequent personnel action

26. More Reasons to Document… • Can help resolve credibility issues, especially in one-on-one situations

27. Barriers to Documentation • Takes too much time • Union contract imposes burdens on management • Employee might find out • Feels wrong to do it

28. Documentation Dos & Don’ts DO • Keep contemporaneous notes. • Write enough detail so event is clear and information will help your recall what occurred.

29. DON’T • Call employee names or use offensive language. • Make reference to protected activity (EEO, grievances, etc.).

30. ADVERSE ACTION PROCESS Employee is entitled to DUE PROCESS, including: • Advanced written notice of charges and specifications • Access to evidence relied on by the agency • Opportunity to respond to charges, orally and in writing • Representation by an attorney or other person (if no conflict) • A written decision stating the specific reasons supporting it

31. Keys for Avoiding Due Process Snafus (DPS) To keep your misconduct action ironclad • Avoid exparte communications during proposal/decision phase of adverse action process • Make sure that employee receives all materials relied on to propose action • Make sure that penalty choice is based on permissible factors

32. Investigating Misconduct • If conduct may be criminal, refer matter to Office of Inspector General (OIG) • Where conduct is directly observed, no need to investigate but must have appropriate documentation to prove what happened • If investigation necessary, can be conducted by OIG, HR or Supervisor; Documenting evidence and findings is key

33. Common Attendance Issues • Sick Leave Abuse • LWOP and AWOL Issues • Tardiness

34. Sick Leave • Medical appointment • Incapacitation • Care for sick family member • Arranging for or attending the funeral of a family member • Adoption of a child

35. Ways to Deal with Leave Abuse: • Leave restriction letter • Deal with performance or conduct issues that flow from excessive absenteeism

36. Evidence for Sick Leave Approval • Doctor’s/Medical Statement (can be required for less than 3-day absence) • Manager can question medical evidence if it looks suspicious • Manager must keep information in secure place

37. LWOP and AWOL • LWOP is unpaid approvedleave, granted at the manager’s discretion. • AWOL is an unapprovedabsence that is disciplinary in nature. • Excessive AWOL or LWOP can lead to discipline.

38. FMLA • 12 Administrative work weeks unpaid (or paid) leave for: • Serious health condition of employee • Serious health condition of the spouse, son, daughter, or parent of the employee • Birth of a son or daughter of the employee • Placement of a son or daughter with the employee for adoption or foster care

39. Tardiness * * * Can be a leave/attendance issue if it is repeated and impacts the employee’s productivity * * *

40. PAST PRACTICES • Refers to what agency has done in similar cases • If agency deviates from past practice, may lead to charges of disparate treatment • Past practices can be changed, but may need to give notice first

41. How to Deal With Defenses of Past Practice & Disparate Treatment Solutions: • Advance notice in writing • Deal with problems • Implement • Treat all the same

42. Worker’s Compensation?

43. Fitness For Duty • No longer a prerequisite for removals or agency initiated disability retirement • Can occur in response to employee-provided medical evidence and other limited circumstances, such as position with medical standards

44. Insubordination and Attitude Problems • Can be the basis of disciplinary action. • Labels count because the agency must prove what it charges! • If propose a charge with an intent element, such as insubordination, agency must prove intent.

45. Intent vs. Non-Intent Misconduct Charge Intent • Can Support a higher penalty BUT • Requires more stringent proof to meet legal evidentiary burden, e.g., willfulness Non-Intent • Less proof required BUT • Generally, will support a lower penalty than an intent misconduct charge

46. COMMON TYPES OF MISCONDUCT Intent Non-Intent vs. Falsification Threats Theft of Government Property Insubordination Lack of Candor Disruptive Behavior Misuse of Government property Disrespectful Behavior/ Failure to Follow Instructions

47. It’s Not In my PD… Not a valid basis for an employee to refuse to do work assignment * * * Tip: Most PDs have a catch-all provision of “other duties as assigned.”

48. Disruptive or Disrespectful Behavior Can be alternative to charge of insubordination or threats in the workplace

49. Tools for Penalty Selection • Agency Table of Penalties • Agency Past Practices • Douglas Factors

50. Table of Penalties • Lists various offenses and ranges of penalties for first and subsequent offenses • Has built-in progressive discipline • Should be followed if one exists • No Table of Penalties allows more discretion in penalty selection, but it will be more strenuously reviewed