Hope for movement to nominate board members to the Merit Systems Protection Board (MSPB)

On April 5, 2021, Rep. Gerry Connolly, D-Va. and Rep. Jody Hice, R-Ga., the Chairman and Ranking Member, respectively, of the House Committee on Oversight and Reform’s Subcommittee on Government Operations, wrote to President Biden requesting that he prioritize nominating members to the Merit Systems Protection Board (MSPB).  We have discussed the lack of quorum in other blog posts and have multiple clients who are sadly all-too-familiar with the lengthy delays the lack of quorum has caused in receiving resolution to their appeals.  Read the Letter Here.

The letter notes that the Board has been without a quorum since January 7, 2017, which has resulted in a “backlog of more than 3,000 petitions from federal employees requesting review of their allegations.”

The letter emphasizes the need for swift action in nominating Board members in order to prevent further and potentially more egregious impacts on the MSPB’s functioning, and to finally issue decisions for the thousands of impacted appellants who have been waiting years to receive decisions on their appeals.  We continue to have hope that the nominations for Board members will be coming soon.

American Rescue Plan Act of 2021 Provides up to 600 Hours Paid Emergency Leave

Included in the American Rescue Plan Act of 2021, signed by President Biden on March 11, 2021, were provisions allowing many federal employees access to up to 600 hours paid emergency leave for coronavirus-related reasons.  The emergency leave is similar to the former emergency paid sick leave provided under the Families First Coronavirus Response Act (FFCRA), but with some notable differences.

The first difference worth noting is the amount of paid leave allowed for qualifying federal employees. Prior to its expiration on December 31, 2020, the emergency paid sick leave provision in the FFCRA allowed many federal employees up to two weeks (80 hours) of paid leave for qualifying coronavirus-related circumstances.  While 80 hours of leave certainly can be helpful when treating, recovering from, or caring for an individual diagnosed with COVID-19, in more severe cases, it did not seem like a sufficient amount of leave was being afforded to federal employees who were suffering long-term consequences from the virus.  The emergency leave provision in the American Rescue Plan Act of 2021 allows up to 600 hours (or 15 40-hour weeks) of paid leave to many full-time federal employees for qualifying circumstances.

With the amount of potential leave increasing dramatically from the leave available under the FFCRA, one caveat employees may want to take into consideration, especially when using a substantial amount of the emergency leave, is that any emergency leave used by an employee will proportionally reduce the employee’s total service time used to calculate any federal civilian retirement benefit.  In other words, the emergency paid leave received by an employee under the act does not count as creditable service in calculating the employee’s service time for purposes of retirement benefits.

Many of the qualifying reasons for being permitted emergency paid leave under the American Rescue Plan Act of 2021 are similar – if not identical – to the qualifying reasons for previously being allowed emergency paid leave under the FFCRA.  For example, employees can qualify for the emergency paid leave if they:

  • Are subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  • Have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • Are caring for someone who is subject to a self-quarantine order or who was advised to self-quarantine;
  • Are experiencing symptoms of COVID-19 and seeking a medical diagnosis; or
  • Are experiencing any other substantially similar condition.

The emergency paid leave available under the American Rescue Plan Act of 2021 is also available for qualifying federal employees whose work is affected by childcare issues due to the ongoing pandemic.  This provision is similar to what was available under the FFCRA, but the new act includes a discussion of virtual learning and hybrid learning approaches utilized by schools – methods of instruction that were likely too new and too mysterious to have been included in last year’s FFCRA.  Under the American Rescue Plan Act of 2021, emergency paid leave is available to eligible employees who are caring for a child whose school or place of care has been closed; if the school requires or makes optional a virtual learning instruction model or requires or makes optional a hybrid, in-person and virtual learning instruction model; or if the childcare provider is unavailable to due COVID-19 precautions.

A new but important consideration included in the emergency paid leave provisions of the American Rescue Plan Act of 2021 that was not explicitly laid out in the FFCRA is that emergency leave is also available for qualifying employees who are caring for a family member with a mental or physical disability or who is 55 years of age or older and incapable of self-care, without regard to whether another individual is available to care for the family member, if the family member’s place of care is closed or the direct care provider is unavailable due to COVID-19.

One notable addition to the list of qualifying reasons for being authorized emergency paid leave under the American Rescue Plan Act of 2021 is that employees can receive the emergency paid leave in order to obtain immunization related to COVID-19 or if the employee is recovering from an injury, disability, illness, or condition related to the immunization.

The emergency paid leave under the American Rescue Plan Act of 2021 is available from March 11, 2021 through September 30, 2021.

Actions Taken to Repair Federal Labor-Management Relations in President Biden’s First Week in Office

It has been less than a week since President Joe Biden took the oath of office on the steps of the U.S. Capitol, but the new administration has wasted no time in making efforts to repair damaged labor-management relations in the federal workforce.

On Day 1, President Biden issued an “Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.”  In addition to revoking former President Trump’s Executive Order 13950, the new Executive Order directs federal agencies to assess various existing policies and programs for potential “barriers” to underserved communities and individuals and to create plans for addressing and overcoming such barriers.

Also on Day 1, President Biden issued an “Executive Order on Protecting the Federal Workforce and Requiring Mask-Wearing.”  In an effort to crack down on community transmission of the COVID-19 virus, the new EO requires individuals in federal buildings and on federal property to wear masks, maintain physical distance, and adhere to CDC guidelines on the coronavirus pandemic. The EO also requires the heads of the Office of Management and Budget, the Office of Personnel Management, and the General Services Administration to “promptly issue guidance to assist heads of agencies with implementation” of the EO.

President Biden also made the first welcome change to the composition of the Federal Labor Relations Authority (FLRA), elevating Member Ernest DuBester to the position of FLRA Chairman.  It is expected that in the not-so-distant future, President Biden will also appoint a replacement to Member James Abbott, who is currently serving in a holdover status.

Then, on Friday, January 22, President Biden issued perhaps the most eagerly anticipated Executive Order among federal labor rights advocates.  In an “Executive Order on Protecting the Federal Workforce,” President Biden revoked former President Trump’s Schedule F Executive Order (EO 13957) and revoked Trump’s three civil service reform executive orders (EOs 13836, 13837, and 13839) that have been crippling the rights and abilities of federal Unions ever since they came into existence. For agencies that had already taken action to implement the now-revoked EOs, those agencies “shall, as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding, the actions….”  President Biden’s EO also restored collective bargaining over permissive topics when contracts are up for negotiation.

Hopes and Expectations for the Biden Administration

It has been a rough four years for the rights of federal employees. From a gutted Merit Systems Protection Board (MSPB), to a Federal Labor Relations Authority (FLRA) that has seemingly gone rogue, to a series of Executive Orders signed by President Trump weakening employee and Union rights, some of us who practice in federal employment law have found ourselves scratching our heads and asking, “Could it get any worse?” more than once during recent years.

For someone who touted as a campaign selling point his lack of experience as a politician, President Trump has been remarkably effective at using the political system to hamper the rights of federal employees.  However, the outgoing head of the Executive Branch is soon to be replaced by a much more experienced politician who brings with him decades of knowledge in writing and negotiating law and policy. With this transition of power comes hope for change to level the playing field between employee rights and management discretion within the federal workforce. President-Elect Biden was a young Senator from Delaware when the Civil Service Reform Act of 1978 was passed.  He recognizes the vital role that our federal employees and Unions play in making our government work. And, hopefully, his administration will set into motion key actions early on in his presidency to override and overcome the actions taken by the Trump administration to diminish federal employee rights.

The following is not so much a wish list, but a listing of what we expect to see from the Biden administration in the coming months:

Staffing the Merit Systems Protection Board (MSPB)

Any discussion of expectations for the new administration has to include a discussion of the lengthy lack of quorum experienced by the Merit Systems Protection Board (MSPB). The MSPB was established by the Civil Service Reform Act of 1978, and has stood for decades as a guardian against unwarranted personnel actions suffered by federal employees. For the first time in its history, it has gone more than three years without a quorum under the Trump presidency, disabling it from being able to issue decisions on any appeal or enforcement action that comes before it.

The Board plays an important role in safeguarding federal merit systems. Generally speaking, non-probationary Appropriated Fund federal employees of most Executive Branch agencies are permitted to appeal major adverse employment actions taken against them, such as suspensions greater than 14 days, demotions, and removal actions, to the MSPB. After having their initial appeal heard and receiving an Initial Decision from an MSPB Administrative Judge, a party disagreeing with the Initial Decision is permitted to further appeal to the full Board, comprised of three Members nominated by the President and confirmed by the Senate. Even if the appellant ultimately prevails in her initial appeal, if the Agency refuses to comply with the Administrative Judge’s decision, the full Board ultimately has oversight to ensure and enforce an Agency’s required compliance measures.

With no Members to issue decisions, the MSPB was reported as having a backlog of 3,022 cases as of November 30, 2020. The lack of quorum has resulted in a tremendous backlog of cases and caused federal employees who have been subjected to unwarranted personnel actions to remain in limbo pending decisions on these appeals. We look forward to President-elect Biden nominating new Members to the Board, and the Senate confirming the nominations in the coming administration in order to get the very important functions of the Board back up and running.

Rescinding or Overriding Numerous Executive Orders (EOs) issued by President Trump

EOs 13836, 13837, and 13839: These three Executive Orders served to weaken organized labor and federal employees’ rights. Issued in 2018 and in effect since that time, the three EOs limit official time for Union stewards, compress collective bargaining timelines, and restrict individual agencies and their advisers in their ability to effectively negotiate and seek resolution to a variety of employment matters. For example, in 2020, OPM issued final rules implementing EO 13839’s provisions, urging agencies to limit notice of proposed adverse actions to 30 days and to issue decisions within 15 business days of the end of the reply period. By focusing on expediency in considering and taking major adverse employment actions against employees, management officials are more prone to rush to judgment on allegations and penalties proposed against federal employees, without being able to fully review and consider the applicable evidence and mitigating factors present in each individual situation. If an employee is then removed from their federal employment based on an improper or insufficient review of the evidence or mitigating factors, and the former employee then appeals the removal to the Merit Systems Protection Board (MSPB), the employing agency is likely to face greater scrutiny and be more vulnerable to reversal of the removal action by the MSPB. It is expected that the Biden administration will rescind these three EOs and work to restore labor-management relations.

EO 13957: This Executive Order created a new category of excepted service employees under a newly created “Schedule F.” The EO seeks to transfer many competitive service positions to the excepted service under the new Schedule, subverting the due process rights those employees would normally have in their competitive service employment. It is expected that the Biden administration will rescind the EO and not move forward with Schedule F conversions.

EO 13950: This Executive Order was issued by President Trump under the guise of “combat[ing] offensive and anti-American race and sex stereotyping and scapegoating” in diversity training. As many federal employees and federal employment practitioners are all-too aware, diversity training is necessary for a properly functioning federal workforce. The sad reality that President Trump refused to acknowledge is that double standards and disparities in treatment along the lines of race, gender, and other protected categories continue to exist in the federal workforce. It is expected that the Biden administration will work towards promotion and protection of diversity and inclusion among federal employees, including through the use of diversity training.

Making changes within the Federal Labor Relations Authority (FLRA)

The Federal Labor Relations Authority (FLRA) is currently comprised of two President Trump appointees, Chairperson Colleen Duffy Kiko and Member James Abbott, and one Member originally appointed by former President Obama. Chairperson Kiko and Member Abbott were initially sworn in at the end of 2017, with Member Abbott currently serving in a holdover status because he was appointed to serve the remainder of a 5-year term expiring July 1, 2020. After the appointment of Chairperson Kiko and Member Abbott, the FLRA has issued a series of decisions overturning decades of precedent and eroding the rights of Unions, over the scathing dissents of Member DuBester. The recent decisions issued by the FLRA are largely based not on the text of the Federal Service Labor-Management Relations Statute or on longstanding precedent, but rather on ideological interests in dismantling public sector bargaining. President-elect Biden will likely be able to change the composition of the FLRA by elevating Member DuBester to the role of Chairperson and replacing Member Abbott with a third Member who will recognize the importance of federal labor-management relations, the Statute overseeing such relations, and the decades of precedent protecting the balance of rights within such relations.

Lastly, the FLRA has been without a General Counsel for several years. By statute, the FLRA’s General Counsel has the sole authority to investigate Unfair Labor Practice (ULP) charges and issue complaints. Without a General Counsel, ULP proceedings have ground to a halt. It is expected that the new administration will appoint a new General Counsel and get ULP proceedings started again.

Waiting in Limbo Due to a Pending Security Clearance Adjudication?

When an employee’s security clearance eligibility comes into question, the length of time it takes to adjudicate that employee’s security clearance eligibility can feel painstakingly long. For civil service employees employed by the Department of Defense (DoD), adjudications of security clearances are performed by a central DoD Agency called the Department of Defense Consolidated Adjudication Facility (DoD CAF).

Even when an employing agency is the initial agency to suspend an employee’s access to classified information, the decision on whether or not that employee will be allowed to keep his or her security clearance eligibility is ultimately made by the DoD CAF.

It seems that the length of time for the DoD CAF to adjudicate security clearance eligibility can range from a couple of weeks to more than a year. In many adjudication proceedings, the employee’s security clearance eligibility first comes under review when the employing agency sends alleged “derogatory information” about the employee to the DoD CAF. When this happens, the employing agency will often also suspend the employee’s access to classified information while the DoD CAF adjudicates the employee’s security clearance eligibility. Depending on the type of job the employee performs and where he or she works, the suspension of an employee’s access to classified information can be devastating. If the employee works in a sensitive area or performs work requiring a security clearance, the employee may not be able to perform his or her regular duties while the employee’s clearance eligibility is being adjudicated. Some employees even find themselves in the financially compromising position of being indefinitely suspended from their jobs while their security clearance eligibility is being adjudicated. Because it is never known just how long the DoD CAF will take to adjudicate an employee’s security clearance, employees who are indefinitely suspended may be without work for months or even years.

Employees who are indefinitely suspended due to a security clearance adjudication can apply for and work other jobs while they are waiting on their security clearance decision. However, the chance of being selected for a job requiring a security clearance is very unlikely when the employee’s security clearance eligibility is still being adjudicated by the DoD CAF. Some employees who are indefinitely suspended pending their security clearance adjudication may be eligible for unemployment compensation.

A question we frequently receive from employees whose security clearances are being adjudicated is: “Can anything be done to speed up the process?”. The short answer to that question is: “Perhaps.” Federal employees have the ability to contact their Congressperson’s office to file a Congressional Inquiry on their behalf for various questions or concerns about their federal employment. For employees who are waiting to receive a determination on their security clearance eligibility from the DoD CAF, the filing of a Congressional Inquiry will elicit a response from the DoD CAF to the Congressperson’s office regarding the status of the employee’s security clearance adjudication. The Congressional Inquiry can also serve as a bit of a prompt or reminder to the DoD CAF that further action needs to be taken with regards to the employee’s security clearance adjudication.

Filing a Congressional Inquiry does not normally require representation from an attorney, although if you would like to consult with an attorney before filing your Congressional Inquiry, you are welcome to do so. Many members of Congress have websites that allow constituents to electronically request help dealing with federal agencies, such as the DoD CAF. Alternatively, federal employees can also request a Congressional Inquiry by calling their Congressperson’s servicing district office and speaking directly with a staff member of the Congressperson’s office.

If you are unsure of who your servicing Congressperson is, you typically need to look no further than the internet. The website for the U.S. House of Representatives has a “Find Your Representative” tool in which you can enter your zip code, and the name of your servicing Congressperson in the U.S. House or Representatives will be generated for you (https://www.house.gov/representatives/find-your-representative).

In general, filing a Congressional Inquiry can be a simple, cost-effective way of getting the DoD CAF to provide information regarding the status of your security clearance adjudication. While a Congressional Inquiry does not necessarily guarantee that your security clearance adjudication will be completed quickly, it at least provides a way of drawing attention to your pending issue and learning the current status of your adjudication. If you are a DoD employee who has been waiting several months or more for your security clearance eligibility to be adjudicated by the DoD CAF, you may want to consider contacting your Congressperson’s office to initiate a Congressional Inquiry on your behalf. If you would like to discuss your situation with an attorney at our office, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

OPM Press Release “FY2016 Official Time Report Highlighting Taxpayer Funded Union Time”

I recently read a Press Release from the Office of Communications, Office of Personnel Management (OPM). The release was entitled “FY2016 Official Time Report Highlighting Taxpayer Funded Union Time Released by the U. S. Office of Personnel Management.” I was immediately struck by the inherent bias of the release which referred to “official union time” as “taxpayer funded union time.” Obviously, the intent was to suggest that taxpayers are bearing the burden to fund union official time. The article does not mention the historical give and take of the law which established official time. Instead, OPM attempts to attack federal employees who receive protection on the job from their union against unscrupulous management officials who subject them to unfair treatment. Considering management has a staff of attorneys and personnel specialists on their side to prosecute the employees, all on the taxpayer’s dime, it seems only fair the “poor working man” has somebody on their side to protect their rights. If OPM wants to issue a press release, maybe it should issue a release about how it cannot issue disability decisions in a timely manner. Hard-working federal employees, who become disabled and lose their jobs through no fault of their own, are left to wait on OPM to process their disability applications. During OPM’s long delays when the employees are not receiving any monies, the employee’s credit is ruined and sometimes they are forced into bankruptcy/foreclosure, all because OPM cannot timely review their disability applications and issue decisions. Now that is an injustice!!!

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.