Another problem the report highlighted is the federal government's failure to make optimal use of its employees. A substantial percentage of workers (32 percent) do not think their job makes good use of their skills and abilities. Only 54 percent believe their work opinions count, and many report that they lack the resources and training necessary to succeed.
On a positive note, the report found that the vast majority of federal employees believe their work is meaningful and important, and that they are significantly more satisfied with their pay. The MSPB said that suggests that efforts to make federal pay more competitive have made a measurable difference, although it does not mean that federal pay is necessarily competitive in all occupations and locations. Nevertheless, federal agencies appear to be better positioned to compete for talent than in the past.
"Great progress" has been made toward achieving a workplace free from prohibited personnel practices, such as discrimination and retaliation, the report also found. However, additional work needs to be done in this area. The MSPB stated that while more employees believe they are treated fairly in the workplace, workers continue to express reservations about how agencies fill vacancies and allocate awards. Similarly, employee trust in supervisors to make fair and wise personnel decisions is "guarded," although greater than in the past. Finally, survey results showed a "continuing and often substantial" gap between minority and nonminority employees' perceptions of the fairness of personnel policies and decisions, and the prevalence of discrimination and other prohibited personnel practices.
"Given the gravity of the economic situation the nation is facing, I could not in good conscience ask the President-elect and his Administration to delay for one day the important work that needs to be done," Richardson said.
Richardson is a former ambassador to the United Nations and served as the Secretary of Energy in the Clinton Administration. In a statement, President-elect Barack Obama said he accepted Richardson's withdrawal with "deep regret." Richardson says he will continue to serve as governor.
The 6-month phase-in period is designed to establish a fixed but reasonable time for implementing the policy change, GSA explained in its Federal Register notice. The phase-in period provides agencies with time to comply with their obligations under the Federal Service Labor-Management Relations Act.
GSA's notice can be found in the December 22, 2008 Federal Register, Vol. 73, No. 246, pp. 78360-78361.
The case first began in early 2006, when the Defense Contract Audit Agency (DCAA) decided to fill three auditor positions at its office in Sterling Heights, Michigan. It posted an announcement on an Internet website called Monster.com, and stated in the announcement that it was also accepting resumes for its Career Intern Program. The appellant, a preference-eligible veteran with service-connected disability rated at 30% or more, applied for the auditor positions.
DCAA considered OPM certificates of eligibles and used a category rating system to fill the positions. The appellant's veterans' preference placed him in Category 1; there were no other applicants in Category 1 or in Categories 2 or 3. There were six candidates in Category 4. Because there were fewer than three candidates in Category 1, DCAA considered the applicants in Category 4, in addition to considering the appellant. Ultimately, DCAA hired two auditors from Category 4 and, as required under the applicable OPM regulation, recorded its reasons for not selecting the appellant. The DCAA selecting official did not request OPM permission to pass over the appellant, but rather requested and received permission from a human resources manager. The official also did not notify the appellant of the proposed passover, of the reasons for the proposed passover, or of his right to respond.
The appellant subsequently filed a complaint alleging that DCAA's actions violated his rights under the Veterans Employment Opportunities Act (VEOA) as a compensably disabled preference eligible, and requested appropriate corrective action. The administrative judge assigned to the case issued an initial decision denying the request, and the appellant petitioned for review. In a May 30, 2007 decision, the U.S. Merit Systems Protection Board (MSPB) held that the department's hiring of two nonpreference eligible applicants without a competitive examination under the FCIP did not violate the unsuccessful applicant's rights as a compensably disabled preference eligible, since FCIP authority represents a valid exception to the competitive examination requirement expressly authorized by Executive Order 13,162. After the MSPB issued its decision, the appellant appealed to the Federal Circuit.
In its decision, which was issued on December 24th, the Federal Circuit held that OPM's passover regulation (5 C.F.R. section 302.401(b)) is invalid because it provides 30% or more disabled veterans with less protection than Congress guaranteed them in 5 U.S.C. section 3318(b). The Federal Circuit noted that OPM's regulation demands only that an agency (1) record its reasons for passing over the preference eligible and (2) upon request, provide a copy of those reasons to the preference eligible or her representative. The statute, however, requires that an agency's appointing authority obtain OPM permission to pass over the preference eligible. Moreover, the statute provides additional protections for preference eligibles having a compensable service-connected disability of 30% or more, such as notice to the preference eligible of the proposed passover, the reasons for the passover, and his right to respond.
Accordingly, the appeals court determined that OPM's regulation and the statute are at odds, and therefore, the OPM passover regulation is invalid. The Federal Circuit then reversed and remanded the MSPB's decision.
What the Federal Circuit did not do in its December 24th decision is address whether the FCIP is a valid exception to merit-based hiring. Before the appeals court, the appellant also had argued that the FCIP is unlawful in its entirety because it violates a statutory requirement that exceptions to the competitive service be "necessary" for "conditions of good administration." Because the Federal Circuit concluded that OPM's passover regulation is invalid and that the appellant's veterans' preference rights were violated, the appeals court stated that it did not need to reach the broader question of the FCIP's validity.
The Federal Circuit's decision not to address the FCIP's validity proved disappointing to the National Treasury Employees Union (NTEU). In a rare move, the Federal Circuit permitted NTEU to file a "friend of the court" brief in the case and participate in last October's oral arguments. At issue for NTEU is the growing use by federal agencies of the FCIP, which the union claims is the fastest-growing example of how federal agencies are moving away from statutorily-mandated competitive examination and selection requirements.
One judge on the Federal Circuit's 3-judge panel agreed with NTEU that the appeals court should have addressed the larger FCIP issue. In a concurring opinion, the judge said that the job at issue had not been shown by the government to be a "necessary exception" to the standard procedures of competitive hiring. "This was a primary issue addressed in the briefing and at oral argument... The issue is before this court, and it should be discussed and resolved," the judge wrote.
The case is Gingery v. Department of Defense, U.S. Court of Appeals for the Federal Circuit, No. 2007-3292, December 24, 2008.
View OPM's guidance - which differs for each of the two holidays.
Sometimes, employees challenge such an approach as improper and call it "double jeopardy." So the answer is yes, management can do both a disciplinary action and note the discipline in the employee's performance appraisal; and no, there is no such thing as "double jeopardy" in the administrative federal personnel process. The concept of "double jeopardy" only applies in criminal cases.
But our reader actually asked "should" the information of the disciplinary action be noted in the employee's performance appraisal. And that answer is: it depends. If the underlying conduct charged in the disciplinary action also relates to a performance element, then management has the discretion to note the issuance of discipline to address the perceived misconduct in the context of rating the employee on his or her performance element. If the conduct is wholly unrelated to a performance element, such as receiving a suspension for some off duty misconduct, then it becomes difficult to legitimately reference the discipline in a rating. But if there is a relationship between the charged misconduct and a performance element, then whether to note a disciplinary action is discretionary and may also depend on your agency's culture.
Our reader also asked whether an employee who had a disciplinary action noted in his or her performance rating has any recourse to remove the information from the rating. The answer to that question is also yes. Every agency allows an employee to grieve a performance rating, including the contents of the narrative rating. So an employee could file a grievance of the narrative reference to his or her discipline, but the real question is whether the grievance will succeed. This question is true for any action an employee grieves. It's rather simple to file a grievance. It's not so simple to file a grievance that has a persuasive argument. So merely grieving the rating by complaining that it should not refer to the discipline is not a winning argument, unless you can establish that there is no relationship between the conduct that was the subject of the discipline and the performance element under which the discipline is referenced.
One final point. If the employee failed to grieve the disciplinary action head on in the disciplinary process, he or she cannot then directly try to get the discipline rescinded by filing a grievance if it's mentioned in the rating. The employee would have waived his or her right to directly challenge the discipline having not grieved the discipline when effected, and would only be allowed to seek an adjustment of the rating or rating narrative if the disciplinary action is mentioned therein.
The radio show is this Friday, January 9th, at 11:00 a.m. Eastern Time. You can email your questions to: fedtalk@federalnewsradio.com, or call in your questions during the show by dialing: 1-866-468-1050 (toll-free).
Those in the Washington, D.C. area can listen to the show on their radios by tuning in to 1500 AM. Click on Federal News Radio for more details.
1. Make sure you document employee misconduct prior to initiating disciplinary action.
2. Learn how to effectively deal with informal EEO complaints.
3. Rate your subordinates truthfully: provide each employee an honest assessment of his or her work.
4. Think before you propose a misconduct adverse action against an employee.
5. Managers can deny requests for leave.
6. Understand the different ways to promote employees beyond competitive selection.
7. Learn how to improve your communication with your staff and others in the workplace.
8. Know when it's OK to ask an employee about retirement plans.
9. Apply a common sense and practical approach to requests for reasonable accommodation.
10. Remember that there is no such thing as "off the record" in the workplace.
In discussing these tips, Bransford and Mina highlighted the importance of managers documenting their actions with regard to employee performance, conduct and in dealing with EEO complaints. Bransford stressed that such documentation is critical when pursuing an action against an employee or in defending against an EEO complaint. Bransford also touched upon the importance of communicating effectively with staff and senior managers, asking managers to look closely at the way they communicate their ideas and objectives to both their subordinates and superiors. Similarly, Bransford advised managers to be truthful in the way they rate their employees, providing employees with an honest assessment of their performance. Doing so, Bransford suggested, avoids the potential for grievances or other complaints by employees when a manager wants to pursue action based on poor performance after years of artificially high ratings.
To hear more about the discussion of the Top Ten Tips for Managers in 2009, go to Federal News Radio at the Business of Government section and listen to the show in its entirety.
