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Dewey Publications Inc.
News and Case Alert
Issue #2-2
In this issue...
Featured Book!
Performance Based Actions: It's Not As Hard As It Looks...
The FLRA Proposes Revisions to Regulations Governing ULP Proceedings...
The EEOC Proposes Revisions to its Federal Sector Complaint Proceedings...
MSPB Nexus Considerations, Again...

Ideal for federal supervisors and managers, and anyone who advises them, this handbook examines employee performance and conduct in terms of government accountability. The author offers indispensable and novel tips on managerial rights and responsibilities, improving performance, disciplining and removing unmanageable employees, and more. (more details)

UnCivil Servant

2010 PRICE DROPS!

The Advocate's Practical Guide to Using Mediation
Best of the Commission
Best of the Board
EEO Basics for Complainants
EEO Discovery Forms for Agency Representatives
Consolidated Federal Sector EEO Update 2004-2009
FMLA Basics
MSPB Discovery Forms Book for Agency Representatives
Representing Agencies and Complainants Before the EEOC
Settlement Forms for MSPB and EEOC
Federal Sector Sexual Harassment Law
All above at a new lower price!
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    Best of the Board
    by Peter Broida

    A review of the steps of the Board appellate process and seminal Board and Federal Circuit cases from 1978 to the present, Best of the Board is a must have basic reference for agency and employee representatives alike. (more details)
    Dear _________,

    Welcome to 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.

    Performance Based Actions: It's Not As Hard As It Looks
    By William Wiley

    In survey after survey, federal supervisors are criticized by their employees for not being proactive enough when it comes to dealing with poor performers. For example, just this past fall, the U.S. Merit Systems Protection Board released an extensive study entitled "Addressing Poor Performers and the Law." In that study, the Board noted that supervisors were hesitant to deal with poor performers because the procedures have "too many technicalities which can be mishandled by the supervisor."

    Interestingly, the Board found this hesitance exists even though the classic 5 USC Chapter 43 procedures for handling poor performers include significant agency benefits. For example, as compared to Chapter 75 misconduct terminations, Chapter 43 procedures allow a lower burden of proof, i.e., substantial evidence vs. preponderance of the evidence. "Both 'substantial evidence' (Chapter 43) and 'preponderance of the evidence' (Chapter 75) use a 'reasonable person' standard. However, in plain English, the difference is that under the substantial evidence test, the agency must only prove that the deciding official was reasonable in reaching the conclusion (a reasonable person could reach the conclusion); whereas under the preponderance test, the agency has the burden to prove it is more likely than not that the conclusion reached was correct." Id. at 7. Any agency representative who has ever litigated a misconduct case can appreciate these substantial differences. Significantly, Chapter 43 procedures also prohibit an administrative judge or an arbitrator from mitigating a termination to a lower level of discipline.

    While Chapter 43 procedures are more involved than those governing Chapter 75 actions, when executed properly, the benefits of such an action upon review by the MSPB or an arbitrator may outweigh the extra work, and navigating through Chapter 43 actions has never been easier. In UnCivil Servant: Holding Government Employees Accountable for Performance and Conduct, author William Wiley goes into extensive, yet simplified, detail as to the differences between Chapter 75 and Chapter 43 terminations. He points out that, like many things we do in life, it's not as hard as it looks, if the supervisor knows what specific steps to take. While focusing on the elements of misconduct and performance removals, the text uses a cookbook approach to laying out the steps necessary for each action, and discusses the pros and cons of each approach. Written for the benefit of front line supervisors, UnCivil Servant is also an essential reference for those advising agency decision makers on the scope of their authority to take termination actions while still honoring the protections provided for civil servants by our laws.

    The FLRA Proposes Revisions to Regulations Governing ULP Proceedings
    With Commentary By Peter Broida

    On February 1, 2010, the General Counsel of the FLRA proposed to revise certain provisions of 5 CFR 2423, the regulations relating to unfair labor practice proceedings. According to the FLRA, "the purpose of the proposed revisions is to clarify the Office of the General Counsel's (OGC) role in facilitating the resolution of disputes and in providing training and educating the FLRA's customers about their rights and responsibilities under the Federal Service Labor-Management Relations Statute (Statute)."

    One proposed change is that, in appropriate cases, OGC may make staff available to help facilitate dispute resolution at the precomplaint stage, before complaints ripen in ULP charges. Section 2423.2 is further revised to restore the ADR services provision that was in effect prior to February 18, 2008. The OGC notes that historically it had been successful in helping parties avoid and resolve labor management conflicts and "[t]he use of a problem-solving approach, along with intervention, training, and education services, provides the participants in the Federal sector labor-management relations program with an alternative to adversarial and costly litigation." The amendments also contain regulations to comply with EO 13522 calling for the creation of labor management forums.

    The full text of the Notice of Proposed Rulemaking can be reviewed at http://edocket.access.gpo.gov/2010/pdf/2010-2047.pdf. Comments are encouraged, but must be received on or before March 3, 2010. Dewey author Peter Broida recently offered his comments to the FLRA concerning the proposed rules. His comments are reproduced below.

    COMMENTS BY PETER BROIDA
    CONCERNING NOTICE OF PROPOSED RULEMAKING
    FEDERAL LABOR RELATIONS AUTHORITY
    FEBRUARY 1, 2010
    5 CFR PART 2423

    I take this opportunity to respond to the Federal Register notice of February 1, 2010, calling for comments on the proposed rulemaking affecting 5 CFR 2423.

    A. Settlement

    First, I commend the Authority for reinstating its prior approach to settlement of ULP charges at the precomplaint stage.

    Second, I suggest to the Authority that it modify its proposed rulemaking to expand rather than perpetuate pre-existing practice.

    I recommend to the Authority that it make mandatory settlement discussions at the precomplaint stage unless the regional director concludes that the ULP charge on its face is either untimely or does not state a violation of the law within the Authority's ULP jurisdiction.

    Mandatory settlement discussions at the ULP intake stage would parallel efforts by agencies to utilize ADR during the EEO counseling stage, which is akin to the ULP charge stage of the ULP process. Mandatory ADR during the EEO counseling stage has proved a significant benefit in resolving workplace disputes early and at minimum cost to the parties and, ultimately, to the adjudicator entrusted with the matter if early settlement is not achieved.

    In order to avoid the appearance of prejudment of a case, I would suggest that early ADR efforts be undertaken by an ADR specialist at each region (or perhaps at the FLRA central office) so that the conversations are confidential (to the extent that confidential information provided to the ADR specialist will not find its way into the process of assessing the merit of the ULP charge or into the ULP litigation itself should the case go to complaint).

    B. ULP Charge Filing Requirements

    I suggest that 5 CFR 2423.4(f) be clarified to plainly state that documents supporting the ULP charge need not be served upon the responding party and that the only document that must be served upon the responding party is the ULP charge form itself.

    I thank you for your consideration of these comments, and I wish you well in your efforts to redesign the processes of the FLRA.

    Peter B. Broida
    Practitioner
    February 11, 2010

    The EEOC Proposes Revisions to its Federal Sector Complaint Processing Regulations
    With Commentary By Peter Broida

    On December 21, 2009, the EEOC proposed revisions to its federal sector complaint processing regulations. The EEOC proposes to revise Section 1614.102 by adding two new paragraphs. The first revision requires agency EEO programs to comply with part 1614 and Management Directives and Bulletins issued by the EEOC. It further authorizes the EEOC to review programs for such compliance and to issue notices where noncompliance is found. What the notices will contain, what the EEOC proposes to do upon a finding of noncompliance, and how the EEOC plans to enforce such compliance are issues not addressed in the revisions. The second revision permits the EEOC to "grant agencies variances from particular provisions of part 1614" and for those agencies to run pilot projects for complaint processing implementing procedures apart from those contained part 1614.

    Section 1614.108 is revised to require that agencies failing to complete an investigation within the 180 day time limit send to the complainant a notice explaining that the investigation is not complete, providing a date by which the investigation will be complete, and indicating that complainant may request a hearing or file a lawsuit. Again, the revisions do not provide redress for complainants when agencies fail to complete the investigation by the date indicated in this notice. The new rule does continue to safeguard agencies from "spinoff" complaints, and the EEOC notes that an agency's failure to provide such notice cannot be the basis of a "failure to properly process" claim.

    Other proposed revisions and the full text of the Notice of Proposed Rulemaking can be reviewed at http://edocket.access.gpo.gov/2009/pdf/E9-30162.pdf. Comments are encouraged, but must be received on or before February 19, 2010. Dewey author Peter Broida recently offered his comments to the EEOC concerning the proposed rules. His comments are reproduced below.

    Re: Notice of Proposed Rulemaking: 29 CFR 1614

    Dear Mr. Llewellyn:

    In response to the proposal making notice in the Federal Register notice of December 21, 2009, 74 Fed. Reg. 67839, I offer the following comments for consideration by the Commission and its staff.

    With reference to Section 1614.102(e), requiring that agencies comply not only with the Commission's regulations but also with its Management Directives and Bulletins, I am concerned that the requirement lacks effective and transparent enforcement procedures.

    The regulation does not identify a means by which apparent violations are to be brought to the attention of the Commission, nor does it identify a clear vehicle for processing of complaints of those violations or notification to the person or entity making the complaint of the action taken on the complaint.

    I recognize that the purpose of this section is not to create another source of what in the past have been characterized as spin-off complaints. However, there are violations of management directives of the Commission that are serious and as to which a formal response to the Complainant should be provided. One example would be inappropriate involvement in the EEO complaint preliminary acceptance, investigative, or final agency decision process by agency defense counsel, an apparent violation of MD-110.

    I suggest that the regulation be amended so as to clearly identify an individual or official at the Commission to receive complaints concerning noncompliance by agencies with Management Directives and Bulletins and, further, that the individual, properly identified with an office address, e-mail address, and fax number, be required to provide a substantive response to the complainant within some set period of time that would allow Commission staff the opportunity to review the complaint and determine whether further inquiry or investigation is required. This would not preclude responses that acknowledge receipt of the complaint with an explanation that the complaint has been considered and no further action will be taken if the complaint is insubstantial or seeks adjudication of a matter properly committed to the complaint process described in Part 1614.

    An inquiry and response procedure would demonstrate that the Commission takes its own policy seriously and that it expects agencies to do so.

    Additionally, although I do not believe it would be necessary to amend the regulation proposed to do so, the annual report on EEOC federal sector operations should describe what types of complaints have been made concerning agency noncompliance with Commission Directives and Bulletins and what actions have been taken by the Commission on those complaints.

    I thank you for the benefit of your consideration.

    Yours very truly,
    Peter B. Broida

    MSPB Nexus Considerations, Again
    Doe v. DOJ, 2010 MSPB 16 (2010)

    Issue #1-3 of Dewey's News and Case Alert reported Doe v. DOJ, 565 F.3d 1375 (Fed. Cir. 2009), wherein the court explored the concept of nexus as it relates to off-duty misconduct. To refresh your memory, the Board, Doe v. Dept. of Justice, 103 MSPR 135 (2006), sustained the FBI's removal of Doe, a special agent, for unprofessional conduct when it learned that he videotaped sexual encounters with three separate women, two of which were fellow FBI employees, without their knowledge or consent. The court vacated the Board's decision and remanded with instructions for the Board to articulate 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 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.

    On remand and in response to the court's call for a meaningful nexus standard, the Board noted, ___MSPR___¶¶ 1-36, 2010 MSPB 16 (2010), that "an agency may show a nexus between off-duty misconduct and the efficiency of the service by three means: (1) a rebuttable presumption in certain egregious circumstances; (2) preponderant evidence that the misconduct adversely affects the appellant's or coworkers' job performance or the agency's trust and confidence in the appellant's job performance; or (3) preponderant evidence that the misconduct interfered with or adversely affected the agency's mission." This standard does not reinvent the laws of nexus.

    Noting that the Federal Circuit found that the facts of this case did not involve egregious circumstances, the Board further concluded that Doe's conduct was not directly opposed to the agency's mission where the agency did not allege or show, for example, that "its mission included preventing the surreptitious, non-criminal videotaping of consensual sexual encounters." Finally, the Board found that Doe's conduct did adversely affect office morale and efficiency. In the end, the Board sent the case back to the judge for evaluation of whether the agency would have removed Doe for the conduct in the absence of consideration by agency officials that the conduct might have violated state laws concerning voyeurism.

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