Should All VA Employees Blow the Whistle Now?

On June 23, 2017, the President signed into law the “Department of Veterans Affairs Accountability and Whistleblower Protection Act.” The title has a nice ring to it, but it is somewhat misleading. For most rank and file VA employees, the most significant effect of this law is a drastic reduction in their notice and appeal rights in the event they are accused of poor performance or misconduct. There may be, though, a silver lining to this dark cloud.

In an attempt to gain support for this legislation, lawmakers included provisions intended to protect whistleblowers in the VA from retaliation. Protection of whistleblowers is a desirable goal, and especially important in an agency that has seen a number of scandals brought to light by whistleblowers in recent years. The new law includes a provision that, “In the case of a covered individual seeking corrective action (or on behalf of whom corrective action is sought) from the Office of Special Counsel based on an alleged prohibited personnel practice described in section 2302(b) of Title 5, the Secretary may not remove, demote, or suspend such covered individual under subsection (a) without the approval of the Special Counsel under section 1214(f) of Title 5.” There is a similar provision for employees who have made whistleblower disclosures to the Assistant Secretary for Accountability and Whistleblower Protection.

Employees who have blown the whistle, therefore, have some additional protection from the fast track disciplinary actions permitted under the new law. Disclosures of wrongdoing can be filed or reported to the Office of Special Counsel at www.osc.gov. Any whistleblower disclosure made by an employee should be shared with the employee’s chain of command right away to help ensure protected status. After all, to be protected, the employee must blow the whistle before retaliation occurs, and the management official taking the action has to be aware of the disclosure.

An employee who is considering blowing the whistle, should review carefully (preferably with legal advice) whether your disclosure will be protected. Under the law, the term “whistleblower disclosure” means “any disclosure of information by an employee of the Department or individual applying to become an employee of the Department which the employee or individual reasonably believes evidences — (A) a violation of law, rule or regulation or (B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”

If, after making such a disclosure, the employee experiences unlawful retaliation, including proposed disciplinary action, they should immediately report the retaliation to the Office of Special Counsel and request a stay of any personnel action. Employees should seek advice from an experienced federal employment lawyer as quickly as possible when filing with Office of Special Counsel, to help ensure that their disclosures are accurately and completely reported in their filing. Please contact the law office of Bonney, Allenberg & O’Reilly to schedule an initial consultation.

VA Employees’ Rights Eviscerated by New Law

On June 23, 2017, the President signed into law the “Department of Veterans Affairs Accountability and Whistleblower Protection Act.” The title has a nice ring to it, but it is somewhat misleading. For most rank and file VA employees, the most significant effect of this law is a drastic reduction in their notice and appeal rights in the event they are accused of poor performance or misconduct.

For example, prior to this law, most VA employees were entitled to 30 days written notice before being subjected to an adverse action (14 day suspension, demotion, or removal). The new law states that the notice period “may not exceed 15 business days.” Previously, an employee would usually have at least 14 days in which to respond to a proposed adverse action. The new law shortens the reply period to 7 business days. In performance cases, previously the employee was entitled to a Performance Improvement Period before an adverse action, if management felt the employee’s performance was unacceptable. Now, there is no such requirement, and the employee could be removed or demoted without any advance notice that their performance was lagging.

Equally problematic is the effect this law will have on appeals to the Merit Systems Protection Board. Previously, in a misconduct case, the VA had to prove alleged misconduct by a preponderance of the evidence. Now, the VA has a reduced burden of proof of substantial evidence, making it much easier for the VA to remove or discipline employees for alleged misconduct even when the VA has very limited evidence to support the action. In addition, the MSPB is not permitted to mitigate the penalty. For example, before, if the VA tried to remove an employee for a very minor first offense, it would be likely that the MSPB would consider the penalty unreasonable. In that situation, the Administrative Judge could reduce the penalty. Now, the MSPB cannot even review the penalty. The rights of SES employees are curtailed even further.

It remains to be seen how the VA will use this new tool.   Will we see an improved workforce, or will we see a return to the spoils systems of civil service where retaliation, favoritism, and cronyism are unchecked? Either way, VA employees who are facing disciplinary action should seek the advice of an experienced federal employment lawyer at the earliest opportunity. Please contact the law firm of Bonney, Allenberg & O’Reilly to schedule an initial consultation.

Security Clearances in Federal Employment

Many federal government employees are required to hold or be eligible to hold security clearances due to the nature of their work.  In the federal government, security clearances add an additional layer of complication to workplace requirements, and when employees are faced with an allegation that may affect their continued ability to hold a security clearance, lots of questions and confusion are bound to arise.

For Department of Defense employees, the Department of Defense Consolidated Adjudication Facility (DoDCAF) is primarily responsible for issuing security clearances to employees.  In making security clearance determinations, the DoDCAF relies upon certain adjudicative guidelines pertaining to certain types of behavior that may give rise to a concern about a person’s ability to hold a security clearance.  The adjudicative guidelines include Personal Conduct, Financial Considerations, Alcohol Consumption, Drug Involvement, Criminal Conduct, and a number of other items.  If the DoDCAF determines that one or more adjudicative guidelines may be applicable to a certain employee or applicant, the DoDCAF will issue a “Letter of Intent” to revoke or deny the person’s security clearance eligibility.  Every Letter of Intent includes a “Statement of Reasons” specifying the adjudicative guidelines that are called into question and the facts giving rise to the Letter of Intent.  The employee is then given the opportunity to respond in writing to the Letter of Intent by explaining any and all mitigating conditions and providing relevant documentation to support a finding that any security concern has been sufficiently mitigated.

If the DoDCAF ultimately decides to revoke or deny a person’s security clearance eligibility, the person will typically be able to elect to proceed to a personal appearance before an Administrative Judge who works for the Defense Office of Hearings and Appeals (DOHA).  The assigned Administrative Judge will then conduct a hearing and render a recommendation to the DoD Personnel Security Appeals Board (PSAB), which will then make a final determination regarding the person’s eligibility to hold a security clearance.

It is important to take the security clearance process very seriously from start to finish, as an employee’s ability to hold a security clearance is often a condition of their employment.  If the DoDCAF issues a final decision ultimately revoking or denying an employee’s security clearance eligibility, such a decision can lead to adverse action procedures within that employee’s federal employment.

If you have been issued a Letter of Intent to revoke or deny your security clearance eligibility and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

The Golden Rule: “Obey Now, Grieve Later”

It can be difficult to follow an instruction from a supervisor that an employee strongly believes is incorrect, unwarranted, or not applicable to the duties of his or her assigned position. However, for federal government employees, it is usually best to follow the adage, “Obey now, grieve later.” If a federal government employee does not follow an instruction, direction, or order of a supervisor in his or her chain of command, that employee can be subjected to possible disciplinary action. Charges such as “insubordination,” “failure to follow a direct order,” and “failure to follow instructions” are common charges levied on federal government employees in disciplinary proceedings based on allegations that the employee refused to follow a supervisor’s instruction. Even if the basis for the supervisor’s instruction was completely meritless, an employee can still be subject to discipline for not following the supervisor’s instruction. See AFGE, Local 1367 and Lackland Air Force Base (Fed. Arb. 01/26/2011) (arbitration decision upholding a five-day suspension against an employee who did not follow his supervisor’s instructions due to his belief that the instructions were not in accordance with the collective bargaining agreement or past practices).

Even though employees should not typically refuse to obey instructions, an employee usually can express dissent, in a professional manner, with the instruction and not be subjected to discipline so long as the employee still obeys the instruction. For instance, if a supervisor assigns an employee a work task that would typically be handled by an employee at a higher grade level, the assigned employee may express to the supervisor her belief that the assigned work task is outside of her position description. As long as the employee does not refuse to perform the work task, she should not be disciplined simply for advising the supervisor of her belief.

An exception to the “obey now, grieve later” rule exists with regards to instructions that, if followed, could result in irreparable harm such as imminent physical danger. See Larson v. Dep’t of Army, 91 MSPR 511 (MSPB 2002). However, the vast majority of instructions issued by supervisors are not the kinds of instructions that would lead to irreparable harm. In those instances in which the employee does not have a reasonable safety concern, the “obey now, grieve later” doctrine will typically apply.

Following an instruction that seems wasteful, wrong, or outside the scope of the assigned employee’s duties can understandably be frustrating. However, if an employee follows the “Obey Now, Grieve Later” rule of thumb, the negative consequences are more likely to fall upon the employing Agency instead of the employee. For example, if a supervisor were to instruct an employee to work overtime without corresponding compensation, this can lead to a grievance to recoup the back pay the employee deserves for working the overtime. If an employee is instructed to use annual leave in order to meet with a Union steward when the employee should have been carried in an “official time” status for the meeting, a grievance can be filed to reimburse the employee for the annual leave used. Therefore, in nearly every circumstance, an employee is much better off following the “obey now, grieve later” rule than risking potential discipline for refusing to follow an instruction.

If you have an employment matter and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

MSPB Reverses Five-Year Enforced Leave Suspension

Although the Merit Systems Protection Board (MSPB or Board) is currently suffering from a lack of quorum and resulting inability to issue new decisions (Read the Press Release about the lack of quorum Here), the Board appears to have been very busy during the holiday season issuing decisions prior to the departure of MSPB Chairman Susan Tsui Grundmann.

In one Nonprecedential Final Order from the Board, issued December 20, 2016, the MSPB reversed the enforced leave suspension of a postal employee who had been placed in an enforced leave suspension status nearly five (5) years earlier. The Appellant, represented by Bonney, Allenberg, & O’Reilly, P.C. for the entire five (5) year process, had been placed on enforced leave and effectively prohibited from working starting at the beginning of 2012. The Agency’s argument for placing the employee on enforced leave was because the Agency believed the employee’s medical restrictions did not permit her to work any more than six (6) hours per day.

The employee filed an appeal to the MSPB Washington Regional Office in 2012 based on her placement on enforced leave, but the appeal was dismissed by an Administrative Judge for lack of jurisdiction. After further appeal (called a “Petition for Review”) to the full Board, the MSPB issued a decision remanding the appeal back to the Washington Regional Office and finding that the employee’s placement on enforced leave constituted a suspension status over which the MSPB had jurisdiction. Abbott v. U.S. Postal Service, 121 MSPR 294 (2014). This decision was discussed in a Prior Blog Post.

On remand, the Administrative Judge affirmed the Agency’s suspension action, and a second Petition for Review was filed with the MSPB. Finally, after nearly five (5) years of litigation, the Board agreed that the Agency’s placement of the employee on enforced leave was not supported by the evidence. While the Agency had argued that the employee’s medical restrictions did not permit her to work an 8-hour day, the Board pointed out that the Agency disregarded information from the employee’s doctor to the contrary. The MSPB therefore reversed the enforced leave suspension action “because the agency did not prove by preponderant evidence that the appellant could only work a 6-hour day.” Abbott v. U.S. Postal Service, DC-0752-12-0366-B-1 (Nonprecedential), at ¶19. Read the Full Final Order Here.

If you feel you have been subjected to an unwarranted personnel action and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE, AND CASE RESULTS FROM ONE CASE DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE. 

Reasonable Accommodation in the Workplace

The phrase “reasonable accommodation” tends to be something many employees have heard before, but its meaning is not always clear.

Reasonable accommodation requests can arise in two different types of situations: (1) When an employee or job applicant suffers from a physical or mental disability and requires certain adjustments to the work environment to accommodate that disability; or (2) When an employee or job applicant’s sincerely-held religious beliefs and/or practice require an adjustment to certain working conditions in order to accommodate the individual’s religious beliefs and/or practice.

In disability cases, the employer is permitted to ask questions and seek supporting medical documentation to clarify the individual’s disabling medical condition and the requested reasonable accommodation. This is part of the interactive process, which an employer is required to partake in upon receiving a reasonable accommodation request. If the employee or applicant fails or refuses to provide the requested medical information, it is easier for the employer to deny the accommodation request without fear of negative repercussions. Therefore, if a certain type of accommodation is needed in order for the employee or applicant to be able to accomplish the essential functions of his or her job, it is very important to provide the employer with the medical information requested, so long as the medical information sought by the employer is reasonably connected to the particular disability and accommodation request in question.

Religious accommodation cases are slightly different, as the EEOC generally recommends that because the definition of religion is so broad, employers should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. EEOC Compliance Manual, Section 12: Religious Discrimination (https://www.eeoc.gov/policy/docs/religion.html). The interactive process in religious accommodation cases therefore tends to be less cumbersome than in disability accommodation cases. However, if the individual seeking the accommodation has behaved in a way that is markedly inconsistent with his or her professed religious belief, or if the particular accommodation sought appears to be beneficial to the individual for purely secular reasons, this might give rise to the employer questioning whether the individual really holds the professed sincerely-held religious belief and whether the requested religious accommodation is truly necessary.

Once the employee or applicant establishes that an accommodation is necessary for him or her to be able to carry out the essential functions of the position, the employer will typically only be allowed to completely deny providing reasonable accommodation where the reasonable accommodation will cause an undue burden to the employer. Assessing whether an accommodation is unduly burdensome typically becomes an economic question, and the EEOC will explore how costly the accommodation would be to the employer in reaching a conclusion as to whether or not the denied accommodation was unduly burdensome.

One area of contention in reasonable accommodation cases tends to be the type of accommodation ultimately granted to an employee or applicant. While qualified individuals have the right to request and secure reasonable accommodation so long as it is not an undue burden to the employer, oftentimes the reasonable accommodation granted to an employee is not necessarily the same accommodation that was requested by the employee. For instance, a disabled employee who seeks telework as a reasonable accommodation to accommodate a disability that affects his ability to drive might be alternatively granted an accommodation whereby the employer allows him a flexible starting and/or ending time for work that coincides with public transit or available carpool schedules. Similarly, if an employee whose position requires her to be on-call on weekends seeks a religious accommodation that permits her to have every Sunday off for religious service, but the religious service she attends is over by 1:00 p.m., she may be granted an accommodation whereby she is not on call for the specific period of time in which she attends religious services rather than for the entire day.

The EEOC’s website contains a significant amount of guidance regarding reasonable accommodations for disabilities and for religious reasons. For example, see EEOC Compliance Manual, Section 12: Religious Discrimination (https://www.eeoc.gov/policy/docs/religion.html), and the EEOC website’s overview of Disability Discrimination (https://www.eeoc.gov/laws/types/disability.cfm). Additionally, the Job Accommodation Network (JAN) (www.askjan.org) can be a terrific resource for employees with disabilities to explore and discover potential accommodations that may help them to be able to accomplish their essential job functions.

If you are seeking or have been denied a reasonable accommodation from the federal government and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

Administrative v. Criminal Investigations

The question is when is an investigation purely administrative and when is it a criminal investigation. Most federal employees are aware that they must participate in agency investigations whether they want to or not. Most federal employees also know they have a constitutional right not to self-incriminate. The problem is knowing when is an administrative investigation only administrative and when does it become a criminal investigation.

An interview may start out as an administrative interview then change into a criminal interview. Another possibility is that during an administrative interview, facts may be disclosed which will later be used to conduct a criminal investigation. The possibilities and situations are virtually unlimited. Therefore the first and most important thing to do is ask for a Union Representative.

Let’s look at a scenario as it unfolds to show the dangers of a simple administrative investigation. Someone other than a bargaining unit employee, say a contractor, was seen allegedly stealing something and the agency wants to find out if the bargaining unit employee (BUE) saw anything. The BUE is questioned and says no, he didn’t see anything because he was working with Joe Blow over in Building C that day. Come to find out, Joe Blow says he was not with him that day. Now the employee has possibly submitted a false statement, and may also be charged with being off of the job site without permission. The investigator/officer may also jump to the conclusion that since the employee lied about his whereabouts, maybe he was involved in the theft with the contractor. The employee is then brought in for further questioning and it turns out the employee wasn’t at work at all that day but falsified his time card. He now has the above charge of submitting a false statement and falsifying his time card. So a case which started out as having nothing to do with the employee now leads to a proposed removal. By the way, fraud against the United States (submitting false attendance cards and receiving funds) can then be criminally prosecuted. Wow! That went from nothing, to a removal and criminal prosecution in a flash.

So what to do? First, call a Union Representative. The Union Representative can help you recognize potential problems and/or issues.

Second, ask the reason for the interview.

Third, ask if it is a criminal interview. If they say no, don’t take their word for it. If they give you a statement that says it is only administrative, ask them for an agreement of immunity from the U. S. Attorney’s Office. After all, only the U. S. Attorney can provide you immunity.

Finally, don’t talk too much and think about your answer. It is perfectly acceptable to say you do not remember rather than risk giving incorrect information.

Grievance Arbitration vs. EEOC Complaints

The heart and soul of labor unions is the collective bargaining agreement. What makes the collective bargaining agreement so valuable is binding arbitration. So why is it that unions are sending their cases over to the EEOC for processing? Two reasons: (1) it is easier to drop a case on the EEOC for them to handle rather than to do it themselves; and (2) money. The first reason is self-explanatory. The employee is sent over to EEO and the union representative essentially washes his hands of the case or at least no longer must worry about the processing of the action. The second reason, money, is quite simple – arbitration costs money and the EEOC complaint process is free. But are unions really doing right by their membership? I estimate that as many as one-half of the EEOC cases filed are really grievances in disguise. Interestingly enough, another 25% percent could have probably been effectively brought as grievances. The question is, which is more effective? I estimate our success rate in arbitration cases hovers around 70%. Why shouldn’t it, with an independent third party hearing the cases you have selected to proceed on to arbitration. Whereas national statistics for cases going to a decision by the EEOC reflect a success rate of only about 5-6%. Although we tend to do better than the national average, the success rate in proceeding through the EEOC is nowhere near that of arbitration. Add to the disparity between success at arbitration compared to EEOC and the fact that EEOC is now taking 2-3 years to get a decision, and a person must wonder why EEOC is ever chosen over grievances. Unions need to take a hard look at how they are doing business. Do they go slow, cheap and unsuccessful (through EEOC) or do they want to put their members’ dues to work through arbitration and be much more successful?

Proposed Disciplinary Action Proceedings in Federal Employment

 Sometimes, a federal government employee will find himself or herself in the unfortunate situation of receiving a proposed disciplinary action. For most tenured civil service employees, no discipline affecting the employee’s pay may be issued without first providing the employee with notice of a proposed disciplinary action and an opportunity to respond to the proposal.

The law firm of Bonney, Allenberg & O’Reilly regularly represents individuals in replying to proposed disciplinary actions. If you are issued a proposed disciplinary action and would like to consult with an attorney, you should schedule a legal consultation immediately, as most proposed disciplinary actions set out a very short reply period.

Most proposed disciplinary actions also provide information about who to contact to request an extension for purposes of replying to the proposal, and who to contact to request documentation relied upon in proposing disciplinary action. Employees faced with proposed disciplinary actions should always request all of the materials being relied upon in the disciplinary proceeding, although if you are represented by counsel, this is something to discuss with your attorney. In order to be able to fully reply to the proposal, you should have access to all of the information being used against you. While this may seem like common sense, all too often, employees do not exercise the full extent of their rights, and either do not reply at all to the proposal, or do not request to review the materials being relied upon for the proposed disciplinary action.

Just because a certain type of disciplinary action is proposed does not necessarily mean that particular disciplinary action will be imposed. The employee’s right to reply is a very important component of the disciplinary process in federal employment. It should be taken very seriously both by the employee replying to the proposed discipline and by the deciding official who will ultimately make a decision as to what, if any, disciplinary action will be imposed.

A decision on the proposed disciplinary action is typically issued in writing and mailed, e-mailed, or hand-delivered directly to the employee. If the decision being issued upholds the charge and imposes disciplinary action, the decision letter should provide notice to the employee of his or her appeal and/or grievance rights.

Every case is different, and for most people in their probationary periods, the employing Agency is not usually required to issue a proposal and offer the employee the opportunity to respond. Additionally, the Agency’s requirements tend to be different for Non-Appropriated Fund (NAF) employees, whose employment status does not normally entitle them to an appeal before the Merit Systems Protection Board (MSPB) in the event they are faced with a major adverse action.

If you have received a proposed disciplinary action and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

 

The Merit Systems Protection Board

The Merit Systems Protection Board, commonly referred to as the MSPB, was created by the Civil Service Reform Act of 1978 to replace the old Civil Service Commission.  The Merit Systems Protection Board is a quasi-judicial agency that hears appeals of federal employees who have been removed, demoted, or suspended for more than fourteen (14) days.  The mission of the Merit Systems Protection Board is to protect merit principles and promote an effective federal workforce free of prohibited personnel practices.

If you have questions about the Merit Systems Protection Board or need representation, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to schedule an initial consultation with one of our attorneys.  Our firm has been servicing federal employees for more than thirty (30) years.