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Dewey Publications Inc.
News and Case Alert
Issue #1-3
In this issue...
MSPB Nexus Considerations
EEOC Releases Technical Assistance Documents
NOTE FROM THE PUBLISHER
CONCERNING THE CIVIL SERVICE INSTITUTE

Check out the Civil Service Institute, a special one-week introductory training course on the basics of civil service and EEO law, presented later this year in Washington by an outstanding group of subject matter experts through the Federal Employment Law Training Group.

For more information, online registration or printable registration forms, click here.

- Peter Broida

Check out Dewey's Newest Releases For Federal Supervisors!


UnCivil Servant

The UnCivil Servant, by William Wiley, is dedicated to federal supervisors and managers and those who advise them. Holding government employees accountable for misconduct and performance issues can be a tricky business, but as the author of UnCivil Servant notes: "The trick is to know the system. In some situations a government employee who engages in serious illegal misconduct can be terminated in only eight days." The "system" is explored, explained and simplified in this book.

Book excerpt:

Individual supervisors set rules every time they give an order, instruction, or set a policy for their particular workplace:

The policy in this office is that all employees are to check out with me before leaving for the day.

Ed, I want you to close the door to your office before you engage in loud discussions on the phone.

Turn off your computers before leaving work each day.

Each of these is a statement a supervisor might make to establish a workplace rule, a rule that will result in discipline if the employee violates the rule. These rules are just as enforceable as are rules passed by the U.S. Congress, implemented from upon high at agency headquarters, or published in a local policy manual.

About the author: Bill Wiley is a longtime practitioner of federal sector employment law and a lecturer on the topic.


Settling Disputes, 2009

Settling Disputes, by Michael Corum, is the federal supervisor's guide to resolving complaints, appeals, and grievances. There are the traditional approaches to settling disputes but some require more creative solutions. This book covers both. Federal supervisors will learn why, when and how to settle differences with this interest based approach.

About the author: Michael Corum is a well known author and lecturer on a myriad of federal employment law topics involving the management of employees.

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Dear William,

Welcome to the third edition of Dewey's News and Case Alert. As always, Dewey aims to cover the topics you want to read about, and our objective is to tailor the information contained herein to our customers needs. E-mail your topic or case suggestions and comments.

-Dewey Publications Inc.

MSPB Nexus Considerations
Doe v. DOJ, 2008-3139 (May 11, 2009 Fed. Cir.)

In an interesting factual setting, the Federal Circuit recently explored the concept of nexus as it relates to off-duty misconduct in Doe v. DOJ, 2008-3139 (May 11, 2009), on pfr of the MSPB in CH0752040620-B-1.

Doe was a Special Agent with the FBI when he videotaped sexual encounters with three separate women, two of which were fellow FBI employees, without their knowledge or consent. As rumors of his conduct spread throughout the FBI, due to the disclosures of one of the three women, the Office of Professional Responsibility initiated an investigation. FBI policy stated that it did not condone "disciplinary consideration of an employee's morality in romantic or intimate relationships in the absence of (1) a violation of criminal law, (2) an adverse impact on the agency's ability to perform its responsibilities, or (3) a violation of an internal regulation." The policy further allowed investigation into the conduct of employees in the context of a personal relationship only if that conduct was criminal. Doe admitted to videotaping these women without their consent or knowledge and was removed.

At the time of Doe's removal, the deciding official and Doe's supervisor believed that his conduct violated state voyeurism laws. Doe appealed his removal, and the MSPB AJ reversed, finding no legal nexus between the at-issue off-duty conduct and "the efficiency of the agency's operation" nor with the performance of his work duties. The AJ further found insufficient evidence to support the agency's belief that Doe's conduct was criminal. The FBI appealed. As to the agency's perceived criminality of the videotaping, the Board agreed that Doe's conduct did not violate criminal law. Nevertheless, the Board found Doe's conduct to be "clearly dishonest" and in conflict with FBI suitability standards that agents be honest, among other things. With that, the Board found a nexus between Doe's conduct and the efficiency of the service noting that Doe's supervisors had lost confidence and trust in him and his conduct negatively affected service operations. On remand, the AJ mitigated the removal to a 120 day suspension, finding that the agency's loss of trust in Doe was at least in part grounded in officials' erroneous perception that his conduct was criminal and that the disruption in agency operations was primarily caused by others as Doe did not discuss or show the videotapes to anyone. The FBI again appealed to the Board which ultimately sustained the removal again applying its newly adopted "clearly dishonest" standard. Doe appealed to the Federal Circuit.

Unwilling to leave Doe's and perhaps others' fate to the Board's "subjective moral compass," the Federal Circuit soundly rejected the Board's "clearly dishonest" standard as arbitrary.

Without a predetermined standard-e.g., the legality of the conduct-to clarify when the agency may and may not investigate the personal relationships of its employees, it is conceivable that employees could be removed for any number of "clearly dishonest" misrepresentations, from those made to preserve the sanctity of a romantic relationship to cheating in a Friday night poker game. The danger here is twofold; federal employees are not on notice as to what off-duty behavior is subject to investigation and the government could use this overly broad standard to legitimize removals made for personal or political reasons.

Calling for a meaningful standard as to when private dishonesty or misconduct that is not criminal rises to the level of misconduct that adversely affects the "efficiency of the service," the court remanded the case back to the Board to articulate such a standard, whatever that might be, and apply it to the facts of the case.

The court further noted that in removing Doe the FBI was influenced, at least to some degree, by its perceived criminality of Doe's conduct and that the record was unclear as to whether FBI officials interpreted its own policy as requiring a finding of criminality before OPR could properly launch an investigation into an employee's private conduct.

The court left to the Board the question of whether, based on its own policies, the FBI had the authority to discipline Doe for the videotaping. Noting that according to its policy, the FBI is permitted to discipline based on the three instances noted above, the court directed the Board to explore whether the agency rendered its decision based on a determination that Doe's conduct satisfied either of the two prongs not involving a violation of criminal law; and thereafter whether the agency "would have imposed the penalty of removal as an appropriate disciplinary measure, independent of any determination that a violation of criminal law had occurred."

For more information discussing nexus considerations view the following titles, Guide to MSPB Law and Practice, and MSPB Case Summaries.

EEOC Releases Technical Assistance Documents on "Employer Best Practices for Workers with Caregiving Responsibilities" and "Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu)"

With the downturn in the economy, now more than ever, the EEOC is stressing the importance of caregiver-friendly workplace policies. On March 22, 2009, the EEOC issued a "technical assistance document" on employer best practices as they relate to the work/family balance providing suggestions that employers may adopt to reduce the incidence of EEO violations against caregivers. As the EEOC notes, "The poor economy and lack of job creation means that families will need to ensure that they do what they can to keep parents working. The impact of family responsibility discrimination on family well-being is potentially more devastating than ever before." www.eeoc.gov/press/4-22-09.html

The best practices suggested by the EEOC, to name a few, include: implementation/maintenance of flexible schedules, training for managers on the treatment of worker's with caregiving responsibilities, and to review/rethink policies that may limit employees' flexibility.

For the full text of the document visit: http://www.eeoc.gov/policy/docs/caregiver-best-practices.html

For more information related to this topic, view these titles: FMLA Basics and the Guide to the FMLA.


The EEOC also recently released technical assistance on discrimination as it relates to the H1N1 Flu Virus taking care to remind readers that Title VII "prohibits employment discrimination on the basis of national origin, for example, discrimination against Mexicans." www.eeoc.gov/facts/h1n1.html

The document also answers basic questions concerning disability related inquiries and medical examinations covering when and how employers may properly make such inquiries or request health information of applicants and employees regarding the virus. An "ADA-Compliant Pre-Pandemic Employee Survey" is also provided for potential use by employers to plan for absenteeism in the event of a pandemic. Options for infection control practices are also addressed. http://www.eeoc.gov/facts/h1n1_flu.html

For more information on the, Managing Employees Time, EEO Law and Practice, and Disability Discrimination Law Deskbook visit www.deweypub.com.

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A Guide to MSPB Law and Practice, 2009
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A Guide to FLRA Law and Practice, 2009
The FLRA Guide analyzes the case law of the Federal Labor Relations Authority (established in 1978) and its reviewing courts, as well as the procedures and practice of the Authority.

A Guide to Federal Sector EEO Law and Practice, 2009
This Guide is the most comprehensive analysis of federal sector EEO decisions, regulations, policies, guidance, and practical advice available to practitioners. *NOW AVAILABLE*
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