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The Trump Administration’s War on Federal Workers

Monday, June 17th, 2019

Claiming 700,000 members in the United States and overseas, the American Federation of Government Employees (AFGE) stands as the nation’s largest federal and D.C. government employee labor union. The union represents employees who provide care and support for veterans, the elderly and disabled, and people in need of housing through the Social Security Administration, the Department of Veterans Affairs, and the Department of Housing and Urban Development, along with other federal agencies.

A statement on the AFGE website describes these employees as the “vital threads of the fabric of American life.” Now, the AFGE contends, its members are under attack, thanks to recent actions by the Trump administration.

The AFGE is currently in contract negotiations with the Department of Veterans Affairs on behalf of 260,000 employees who work for the agency. In the process of these negotiations, AFGE District Office Manager Matt Muchowski says that VA management is attempting to undo labor rights that have been won by the union since its founding in 1932.

To better understand the nature of these affronts, Muchowski argues, it is important to look at three executive orders signed by President Trump on May 25, 2018. While the orders have since ostensibly been ruled in violation of labor law by a U.S. District Court in August 2018, Muchowski says that sections of the orders which limit time spent during the work day on union activities (known as “official time”) as well as due process are being pushed into the contract by VA negotiators.

This approach is “making it difficult for federal workers to do what they do,” by seeking to alter key elements of the contracts negotiated between AFGE members—including Veterans Affairs workers—and management, he says. Further, Muchowski notes, this strategy has already been employed during negotiations over the Social Security Administration contract earlier this year, which resulted in major concessions for workers. He says the Trump administration’s approach to the AFGE negotiations “represents an escalation of its anti-union tactics.”

The key elements of the 2018 executive orders fall under three categories: employees’ job protection and due process rights, official time and collective bargaining procedures.

The first order outlines limits on the use of “progressive discipline” approaches for workers in federal agencies and instead calls for the allowance of more immediate dismissals, among other more stringently dictated relations between management and workers.

The second order calls for more regulated and restricted use of “official time”: time employees are allowed to spend on union duties while still on the clock. This is a concept that has been part of AFGE’s labor contracts since the Carter administration, Muchowski notes, when the presence of unions in the workplace was seen as “part of effective governance.”

Under this model, an employee can conduct union business while using government-provided items such as office space, computers or phones. Trump’s executive order, however, calls for employees’ official time to be greatly reduced and also mandates that they should no longer be given free or reduced rate access to an office or a computer.

While the Trump administration holds that this revision is necessary to make the government “effective and efficient,” Veterans Affairs employee Germaine Clano disagrees. Clarno is a social worker at the Edward Hines, Jr., VA Hospital in suburban Chicago, and she says the loss of official time would be devastating.

Clarno provides full-time union representation to doctors, social workers and other professional employees of the VA through the official time provision, whether they are dues-paying union members or not. It’s work she describes as essential. “The culture of the VA is still very retaliatory,” Clarno says, noting that she acts as a resource for employees who would like to bring allegations of “waste, fraud or abuse” to light.

“Taking away official time means taking away employees’ security around being able to report what’s going on at the VA,” Clarno insists, “so that we can make things better for our veterans.”

The third order issued by Trump in 2018 is designed to “assist executive departments and agencies in developing efficient, effective, and cost-reducing collective bargaining agreements.” The order claims that collective bargaining agreements limit managers’ ability to either hold “low-performers accountable” or reward “high performers,” and that they are often drawn out, at the expense of taxpayer money.

The order calls for an expedited contract negotiation period, with lingering disputes to be settled by the politically-appointed members of the Federal Service Impasses Panel (FSIP). In the post-Janus era—which has brought new challenges to public sector unions—it’s notable that panel member David Osborne’s bio states that he has built a career around “offering free legal services to those hurt by public employee union officials.”

While both the FSIP and attempts to govern through executive orders are not new, they are part of an increasingly fraught era for federal workers and the Trump administration’s federal management team.

Just days before Trump issued his three executive orders, news reports noted the rising tension between workers and federal managers, who had just unveiled “an ambitious and aggressive plan to modernize the civil service,” according to Nicole Ogrysko of the Federal News Network. This plan, union leaders alleged, was intended to cut department budgets while turning more federal employees into poorly compensated temp workers.

Trump’s executive orders were contested in court by the AFGE and other labor unions, and in August 2018, U.S. District Court Judge Ketanji Brown Jackson ruled in favor of the unions. At the time, a review of the case appeared in the online news outlet, Government Executive, where reporter Erich Wagner stated that Brown Jackson found the executive orders to be in violation of the Civil Service Reform Act of 1978.

This Act upholds the value of good-faith labor-management negotiations and concludes that they are done “in the public interest.” Nonetheless, Muchowski says, the Trump administration has persisted in seeking to negotiate labor contracts with federal employees according to the 2018 executive orders. As evidence, he cites the recently settled contract between the Social Security Administration and the 45,000 AFGE members who work there.

During the contract negotiation process, SSA management and union negotiators could not agree on twelve clauses, according to a reportfiled by Tom Temin of the Federal News Network. As a result, the contract was turned over to the FSIP, which has the power to either “recommend a way to agree,” or “order specific, binding actions” that both parties must abide by, Temin states.

While some government panels are bipartisan, the FSIP is not: All seven members were appointed by Trump. Temin notes that, of the twelve disputed clauses, the FSIP sided with management on ten of them. Although AFGE members were able to keep certain grievance rights, they did lose ground on some central matters, including the implementation of a seven-year contract (the union wanted a two-year term) and the loss of both office space and hours set aside for official time.

David Cann, director of field services and education for the AFGE, says he believes the FSIP’s actions are a violation of Judge Brown Jackson’s ruling against certain aspects of Trump’s executive orders. Brown Jackson’s decision, Cann notes, found that parts of the executive orders violated collective bargaining rights outlined in the Civil Service Act of 1978, and that neither the president nor his subordinates could continue negotiations under such terms.

Because the FSIP is an entirely politically appointed body, Cann argues that its members are, in effect, Trump’s subordinates and therefore should not be allowed to settle disputes, using what he believes are the administration’s executive orders as a guide.

In a statement posted to its website, the AFGE minced no words about the dangerous precedent such a decision could set: “A panel of Trump’s union-busting appointees has imposed anti-worker provisions in a new labor-management contract for the people who ensure elderly Americans and those with disabilities can live with dignity and financial security.”

Clarno has been closely tracking the contract settlement between AFGE and the Social Security Administration and says that, for her, the “fear is that the Federal Service Impasse Panel will push the same thing” for VA workers in contract negotiations. “Federal employees can’t strike,” she states. “Really, what leverage do we have? We have none. It’s very, very concerning.”

This article was originally published at In These Times on June 14, 2019. Reprinted with permission.

About the Author: Sarah Lahm is a Minneapolis-based writer and former English Instructor. She is a 2015 Progressive magazine Education Fellow and blogs about education at brightlightsmallcity.com.

Responding to a proposed disciplinary action

Tuesday, November 20th, 2018

There is short window to give your formal reply

Employees of federal agencies have many rights that do not apply in the private sector. One important protection is the right to be notified in advance of disciplinary action.

If you are facing an adverse action – suspension, demotion or removal – you may have as little as seven days to give your formal reply. With your job and possibly your federal career on the line, you should involve an attorney who practices federal employment law.

The dreaded proposal of adverse action

You may find your job in jeopardy due to supposed misconduct or performance issues. Your federal agency must give you a written proposal that outlines (a) the evidence of wrongdoing or poor performance and (b) the adverse employment action that is proposed. The proposal must be provided at least 30 days in advanced of the sanctions.

The agency must give you an opportunity to provide a formal reply to the proposed sanctions. This time frame may be as short as seven days, depending on the agency and the type of action.

Your reply is reviewed by a higher level manager. Even if the agency upholds the proposal and implements the proposed action, your formal reply will serve as the foundation for appeal. It is important to provide a detailed and timely response. Your attorney can help you draft a reply that complies with your agency’s protocols.

Appealing an unfavorable decision through the MSPB

If you are slated for termination, downgrade or suspension of 14 or more days, you can appeal to the Merit Systems Protection Board. Your case will be heard in an MSPB hearing or, or in an arbitration if you are a member of a union.

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on November 2, 2018. Reprinted with permission. 

About the Author: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

Does security clearance expire?

Friday, September 21st, 2018

Once you are cleared to work for the federal government, the clock starts ticking on your security clearance.

If you stay in your job, you will have to be “reinvestigated” periodically. If you leave your federal agency or contractor job, your clearance can lapse in two years. As you move up the ladder, you may need to obtain a higher level of clearance.

The key is to know your clearance status and be proactive to retain clearance, upgrade or get reinstated.

When does security clearance lapse?

Confidential level clearance, the lowest security threat, is good for 15 years. Secret clearance lasts 10 years. Top Secret clearance must be reinvestigated (reauthorized) every 5 years. This assumes no incidents or allegations arise that would cause the government to scrutinize your clearance.

If you are separated from federal employment (voluntarily or involuntarily), your security clearance can lapse. If you resume work for another federal agency or a federal contractor within that time frame, your clearance is reactivated without an investigation. But if the clock expires, you will essentially have to re-apply for security clearance.

How long does it take to get cleared or re-cleared?

The background investigation accounts for the bulk of the processing period. Clearance for lower level jobs rely more on database searches, while positions with higher security involve interviews and other field work.

According to the National Background Investigations Bureau (NBIB), the average processing time for all security clearances in the defense industry is 325 days:

  • Secret and Confidential clearances average 259 days, and 220 days for reinvestigations.
  • Top Secret clearances average 543 days, and 697 days for reinvestigations.

Why does security clearance take so long?

The government clears about 4 million people per year, but that is not keeping pace with demand. There is an estimated backlog of 700,000 security clearance cases, about one-third of whom are federal contractors. Top Secret (TS) security clearances used to be performed in less than three months. Now even the most straightforward TS cases take a year or more.

The administration aims to shift all security clearance from the NBIB to the Department of Defense. Even if that is more thorough and efficient in the long run, such a huge transition will likely increase the backlog and chaos in the short term. Applicants will slip through the cracks. Hiring and advancement will be stymied. Agencies and defense clients will get restless.

The government is also shifting to “continuous evaluation,” rather than more labor-intensive field work, to manage clearance and renewals. This will ideally speed processing times and reduce the backlog, but again the growing pains will likely be felt by federal employees and contractors who get lost in the shuffle.

This blog was originally published by Passman & Kaplan on September 8, 2018. Reprinted with permission. 

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

 

Can federal workers blatantly discriminate against LGBTQ people? Jeff Sessions isn’t sure.

Wednesday, October 18th, 2017

During Wednesday’s Justice Department Oversight Hearing, Sen. Dick Durbin (D-IL) asked Attorney General Jeff Sessions about the Department of Justice’s new “religious freedom” guidance. In particular, Durbin was concerned about how the guidance might enable anti-LGBTQ discrimination, asking Sessions to respond to several hypotheticals.

“Could a social security administration employee refuse to accept or process spousal or survivor benefits paperwork for a surviving same-sex spouse?” Durbin asked.

There was a long pause. “That’s something I never thought would arise, but I would have to give you a written answer to that, if you don’t mind.” Sessions responded.

Durbin countered, “I’d like to have that,” then launched right into another hypothetical. “Could a federal contractor refuse to provide services to LGBTQ people, including in emergencies, without risk of losing federal contracts?”

“Likewise, but I would say to you — are you citing Title VII for this? Or the guidance? I’m not sure that’s covered by it, but I’ll look.”

It is highly unbelievable that Sessions had never considered these examples prior to Wednesday. More than two years ago, when he was still in the Senate, Sessions was one of the original co-sponsors of the First Amendment Defense Act (FADA), a bill that would grant those who have religious objections to same-sex marriage a license to discriminate. Many of the provisions in the new guidance mirror FADA’s language.

 In response to that bill’s introduction, the ACLU and LGBTQ advocacy groups pushed back, saying that it would be used to prop up discrimination. The ACLU, in particular, outlined FADA’s “parade of horribles” in a 2015 blog post, including the following two:
  • [It would] permit government employees to discriminate against married same-sex couples and their families – federal employees could refuse to process tax returns, visa applications, or Social Security checks for all married same-sex couples.
  • [It would] allow federal contractors or grantees, including those that provide important social services like homeless shelters or drug treatment programs, to turn away LGBT people or anyone who has an intimate relationship outside of a marriage.

Those are nearly identical to the hypotheticals Durbin asked Sessions to respond to on Wednesday. Still, years after they’d been highlighted by advocacy groups, Sessions claimed they had somehow never occurred to him before.

After Sessions’ dodged Durbin’s hypotheticals, the senator asked the attorney general to comment about the fact that “people are discriminating in the name of their own personal religious liberty.”

Sessions responded:

Yes, I would say that wherever possible, a person should be allowed to freely exercise their religion and not to carry out activities that further something they think is contrary to their faith. But at the same time, if you participate in commercial exchanges, you have limits on what you can do under those laws — public accommodation type laws. And so the balance needs to be properly struck — and I think we have. Those issues were discussed as we wrestled with this policy.

It’s unclear with whom Sessions discussed those issues. The Department of Justice apparently held “listening sessions”, but has refused to name which groups it consulted. The reason the public even knows these consultations took place at all is because the Alliance Defending Freedom — an anti-LGBTQ hate group that defends business owners who discriminate and challenges nondiscrimination protections in the name of “religious freedom” — bragged that it had participated in them.

Given Sessions said in an interview last week that he believes such discrimination should be allowed in the case of the anti-gay baker whose case is headed to the Supreme Court, it’s not hard to imagine how he might respond to Durbin’s hypotheticals, if pressed.

This article was originally published at ThinkProgress on October 18, 2017. Reprinted with permission. 

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. In 2014, The Advocate named Zack one of its “40 under 40” in LGBT media, describing him as “one of the most influential journalists online.” He has a passion for education, having received a Bachelor’s in Music Education at Ithaca College and a Master’s in Higher Education at Iowa State University, and he relishes opportunities to return to classroom settings to discuss social justice issues with students. He can be reached at zford@thinkprogress.org.

Federal government is the biggest low-wage employer in South Carolina

Monday, February 29th, 2016

Many workers whose jobs are funded by the federal government don’t work for the federal government—they work for companies with federal contracts. And many of those jobs don’t pay a living wage, effectively making the government a low-wage employer. In South Carolina, it’s actually the largest low-wage employer in the state, a new analysis by Good Jobs Nation finds:

These low-wage jobs are in occupations such as home healthcare aides (4,336), construction (1,185) security guards (876) and food service workers (444). And, just as Demos found for the nation as a whole, the 30,000 low-wage jobs subsidized by federal funding streams in South Carolina make the U.S. government the single largest creator of low-wage private sector jobs in the State, outranking Wal-Mart and McDonald’s combined, which employ an estimated 20,600 and 8,900 low-wage workers respectively within the State.

President Obama signed an executive order raising the minimum wage for federal contract workers to $10.10 an hour in 2014, but that is going into effect gradually. And $10.10, while a big improvement over the federal minimum wage of $7.25 an hour, is not enough.

This blog originally appeared in dailykos.com on February 27, 2016. Reprinted with permission.

Laura Clawson has been a Daily Kos contributing editor since December 2006 and Labor editor since 2011.

 

Uncle Sam’s Hiring Practices

Wednesday, December 18th, 2013

Bruce VailA pair of reports released this week show that the federal government routinely ignores worker safety and labor law violations when awarding contracts to private companies—and that American taxpayers are cheated in the process.

The first  comes from the staff of the Senate Health, Education, Labor, and Pension (HELP) Committee, which conducted a yearlong investigation of federal contracting records. Unveiled Wednesday by HELP Chairman Sen. Tom Harkin (D-Iowa), the report provides a long list of specific companies that break safety and labor laws yet continue to receive big government contracts. In particular, it names 49 law-breaking contractors that got more than $81 billion from Uncle Sam in 2012 alone—including AT&T, Home Depot and GM.

The HELP report was paired with one from the Center For American Progress (CAP) Action Fund, a Democratic Party advocacy group, which examined whether government contractors are actually fulfilling their contracts. The CAP report found that a number of companies shortchange taxpayers through poor performance, and names specific companies that stand out in this respect, including Lockheed Martin and KBR. Some of these scofflaw companies, such as international oil giant BP, overlapped with the HELP report lists.

The CAP report was presented Wednesday by Chairman John Podesta in a joint appearance with Harkin at CAP’s Washington D.C. headquarters.

Both Harkin and Podesta trace the origin of their respective reports to a 2010 study by the U.S. Government Accountability Office (GAO) that analyzed official data on safety and labor law violations by government contractors. That GAO report found that known violators routinely received new government contracts. It failed to name the specific contractor companies guilty of violations, however, and the HELP report was designed to provide the public with those names, as well as to bring the information up to date through 2012, according to Harkin. CAP report co-author David Madland says his effort “provides a nice complement” to the HELP analysis by highlighting that the contracting problem is not solely a labor issue, but also one of good government administration and the concern of taxpayers over wasteful spending.

The names of federal contractors guilty of fatal worker safety violations will be familiar to most Working In These Times readers. Harkin began his presentation by pointing to the workplace deaths of 10 employees in three separate incidents at the facilities of laundry operator Cintas Corp., shipbuilder ST Engineering Ltd. and oil refiner Tesoro Corp.  Despite these deaths, all three companies received federal contracts in 2012, with Tesoro alone getting $463 million last year, the report states. A lengthier list of safety violators (some fatal, some non-fatal) includes international oil giant BP, commodities conglomerate Louis Dreyfus Group, beef and chicken processor Tyson Foods, auto manufacturers General Motors and Chrysler, and defense contractor General Dynamics. Eighteen such companies received almost $23 billion in federal contracts between 2006 and 2013, the report details.

Harkin pointed out that of 18 companies with terrible safety records, only one, BP, had ever been barred from federal contracts—and that suspension from new contracts was spurred by the environmental damage from the 2010 Deep Water Horizon oil rig explosion, not from the safety violations (although 10 workers were killed). Federal contracting officers routinely ignore the bad worker safety records of companies competing for government business, he added, and reforms are needed to correct the problem.

Similar issues are raised when analyzing the records on wage-and-hour law violations, according to both HELP and CAP. Again the HELP report unearths many household names from the Department of Labor records of companies obliged to make back wage payments to workers for legal violations. Among them are Hewlett-Packard Co., AT&T, General Dynamics, Nestle S.A., Lockheed Martin Corp., Cerberus Capital Management, and Home Depot Inc. A group of the 32 worst offenders received  $73.1 billion from the federal government between 2007 and 2012, the HELP report says.

Harkin conceded that not all violations are so serious that contractors should be punished by exclusion from government business. Some violations apparently arise from simple errors, unavoidable accidents or other benign sources, he said. However, when the Labor Department finds willful and repeated violations, it can assess civil penalties. Harkin suggested that the contractors penalized in this way should receive special scrutiny before any new contracts are awarded. HELP researchers came up with the names of Sprint Nextel Corp, UnitedHealth Group, Marriott International, C&S Wholesalers Inc., Acosta Inc. and University of Pittsburgh Medical Center as examples of contractors already assessed for “severe and repeated” violations of labor law. Together, those six companies received about $470 million in federal contracts in 2012 alone, the report said.

Like the safety violators, none of the wage-and-hour labor-law violators have been barred from the further government contracts, Harkin emphasized. “There is an existing legal requirement (that contractors obey labor law) but it’s clear to me that compliance is not being considered” when new contracts are awarded, he said.

CAP came up with some of the same names when it separately analyzed the government data and “found that the companies with the worst records of harming workers were also guilty of shortchanging taxpayers through poor performance on government contracts and similar business agreements in ways that defraud the government and otherwise provide a bad value for taxpayers.”

Cited in this regard were:

  • KBR, a construction and defense contractor notable for its work in Iraq and Afghanistan, which received $11.4 billion in contracts between 2009 and 2013
  • BP, the international oil giant, which received $4.6 billion in contracts (plus $433 million in offshore oil and gas leases) 2009-20013
  • Corrections Corporation of America or CCA, the nation’s largest operator of private prisons, which got $2.3 billion in government contracts 2009-2013
  • Akai Security, notable for its agreements to provide private security at Department of Justice facilities nationwide, which got $3.6 billion on government contracts 2009-2013
  • Wackenhut Services, whose subsidiary ArmorGroup of North America provides private security guards at U.S. embassies overseas, which got $1.7 billion 2009-2012
  • Lockheed Martin, a diversified military contractor, which got $170 billion 2009-2013
  • Group Health Cooperative, a health maintenance organization (HMO), which got $20.2 million 2009-2012

Both Harkin and Podesta were full of righteous indignation about this state of affairs at their joint appearance Wednesday, but neither offered any sweeping new proposals to fix the problem. The HELP report states that existing law allows federal contract administrators to exclude offending companies and suggests that improved reporting and database management by the Labor Department could make it easier to bar scofflaw companies. It also proposes that President Barack Obama issue several small-scale executive orders that would streamline the process of legally excluding some companies. The CAP conclusion was even less ambitious, merely blaming “weak guidance and lax enforcement of the regulations” for the chronic contracting problems.

It’s possible that in ignoring the possibility of stronger federal laws, both reports implicitly recognized the impracticality of any new legislative initiative in Washington’s current political environment.

CAP’s Madland tells Working In These Times that the new reports represent a continuing effort by Democrats to wrestle with the contracting issue. Reform proposals early in the Obama administration known as “high road” contracting were abandoned in the face of political opposition, he says, but the need to make reforms to the contract process remains. “Workers are being killed because companies cut corners. …The system is broken and needs to be reformed.”

This article was originally printed on Working In These Times on December 12, 2013.  Reprinted with permission.

About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

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