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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.

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!!!

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.

Arbitration Award for Air Reserve Technician (ART) Bargaining Unit Employees of NAIL Local 7

In National Association of Independent Labor (NAIL), Local 7 and U.S. Department of the Air Force, 4th Fighter Wing, Seymour Johnson Air Force Base, North Carolina, FMCS No. 16-51813 (August 11, 2016), the National Association of Independent Labor (NAIL), represented at arbitration by Bonney, Allenberg & O’Reilly, P.C., received an arbitration award that prevents the Air Force from requiring that Air Reserve Technicians (ARTs) wear their military uniforms while in civilian employment status.  The arbitration decision found the Air Force’s requirement that the ARTs wear their military uniforms while in civilian employment status to be contrary to 10 U.S.C. Section 772.  Arbitrator Ellen Saltzman wrote, in part, that the Agency was to “immediately cease and desist requiring ARTs to wear a military uniform while working in their civilian job.”  The full text of the arbitration award can be read by clicking on the following link: NAIL, Local 7 and U.S. Dep’t of Air Force, 4th Fighter Wing, SJAFB, FMCS No. 16-51813 (August 11, 2016).

If you are a federal government employee in need of legal representation and would like to discuss your situation with an attorney from 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.  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. 

Retaliatory Reassignments: Where an employee is involuntarily moved or reassigned because he or she engaged in protected EEO activity, the Agency’s action may be viewed as retaliation.

Many federal government employees who have engaged in the EEO process know all too well that EEO activity may be received negatively by their chain of command. Most federal government employees who engage in the EEO process are also aware that they have the right to file an EEO complaint based on retaliation in the event they feel their management has taken a materially adverse action against them because of their EEO activity. One form of retaliation may be an involuntary reassignment to a different position, schedule, or work location. When reassigning an employee who has engaged in protected EEO activity, managers will often use the rationale that they are reassigning the employee away from whatever co-worker or supervisor was named in the employee’s EEO complaint as a way of “protecting” that employee. In reality, these types of involuntary reassignments may be viewed as punitive in nature, especially where the employee who engaged in EEO activity is moved to a less desirable work location or given less desirable duties.

Even if an Agency claims that a reassignment of an employee is intended to protect the employee rather than retaliate against the employee for having filed an EEO complaint, the involuntarily reassigned employee may have a viable EEO complaint that the reassignment was actually based on retaliation for the employee’s protected EEO activity. In Moore v. Department of Education, EEOC Appeal No. 0120111258 (August 15, 2013), the Complainant was detailed to an undesirable work assignment after filing an EEO complaint alleging, in part, sexual harassment. The Complainant’s third-level supervisor stated that after being informed of the EEO complaint, the Complainant was reassigned to “protect her” in the event her allegations of sexual harassment proved to be true. The EEOC found that detailing Complainant was not appropriate corrective action for the sexual harassment she suffered, explaining “that a complainant should not be involuntarily transferred or otherwise burdened, because such measures could constitute unlawful retaliation.” The EEOC concluded that the Complainant’s transfer in that particular case “was due to retaliation for Complainant’s claims of sexual harassment.”

Similarly, in Abrigo v. Department of Homeland Security, EEOC Appeal No. 0120064230 (September 15, 2008) (which was cited in the Moore decision), the Agency changed the Complainant’s schedule “to protect” her while investigating her sexual harassment claims. Even though the EEOC affirmed a finding of no discrimination as to the sexual harassment claims, the EEOC found that the subsequent schedule change was retaliatory. The EEOC concluded that the Agency failed to articulate a legitimate nondiscriminatory rationale for the schedule change, holding “that the undisputed record supports the finding that the agency engaged in reprisal toward complainant on the basis of her prior protected EEO activity when it changed her schedule.”

If you feel you have been subjected to retaliation for engaging in protected EEO activity 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.

A Suspension By Another Name Is Still A Suspension

Sometimes, federal agencies will place an employee out of work without pay against the will of the employee. This happens primarily in situations where the employee has been suspended from work for any host of reasons, usually involving some finding of misconduct by the employer. In the federal government, most civil service employees cannot be suspended unless and until they are provided with due process – namely, written notice of a proposed disciplinary action and an opportunity to respond orally and in writing to that proposed disciplinary action.

However, in some circumstances, the employing agency will effectively suspend an employee by placing him or her out of work without pay, but will not call the action a “suspension.” When an Agency makes an employee choose between using her paid leave or being carried in a Leave Without Pay (LWOP) or Absent Without Leave (AWOL) status, it is called “enforced leave.”

In Pittman v. Merit Systems Protection Board, 832 F.2d 598 (Fed. Cir. 1987), the U.S. Court of Appeals for the Federal Circuit held that an agency placing an employee on enforced leave due to a medical condition constituted an appealable suspension of more than fourteen (14) days. More recently, in Abbott v. U.S. Postal Service, 121 MSPR 294 (2014), the Merit Systems Protection Board (MSPB) confirmed the longstanding ruling from Pittman that an agency’s placement of an employee on enforced leave for more than 14 days constitutes a suspension that can be appealed to the MSPB.

Even more recently, in Martin v. U.S. Postal Service, 2016 MSPB 6 (2016), the Postal Service placed an employee in a Leave Without Pay (LWOP) status without her consent for a retroactive period of time, which the MSPB found to be an appealable suspension action. Because the Agency had never given the employee notice of a proposed suspension and an opportunity to respond, the MSPB reversed the LWOP status entirely by finding that the Agency suspended the employee without due process.

In cases like Abbott and Martin, the employing agency did not necessarily refer to the employment actions it took against those employees as being “suspensions,” but the MSPB still found that the Agency had effectively suspended the employees, requiring the Agency to carry the same burden of proof and provide the same due process guarantees as are required in any other suspension of greater than 14 days. (Suspensions for 14 days or less are typically not appealable to the MSPB.)

If you have been involuntarily placed out of work without pay 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.