Ask The Lawyer

By Debra Roth

Employee’s right to representation can be tricky for managers

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Federal managers are often confronted with a situation in which a subordinate employee wants a representative or witness to be part of a meeting. The question for the manager is: Do I have to let the representative in?

The answer depends on whether the employee is a member of a bargaining unit represented by a federal-sector union. If so, specific rules exist concerning formal meetings and investigations. In general, if a meeting is formal, the union must be notified and provided an opportunity to be present. With respect to investigations, a manager must allow a representative into a meeting if the employee requests representation and reasonably believes disciplinary action will result from the meeting. These entitlements are sometimes referred to as Weingarten rights after a Supreme Court decision that established them.

A manager confronted with these situations should consult with a labor relations specialist to prevent the commission of an unfair labor practice. Determining when a meeting is formal and the types of investigations that are covered can be tricky. This exists within a structure that says most day-to-day meetings between a supervisor and subordinate come with no obligation to let the employee delay or control the meeting by requesting a representative or witness.

A manager has more discretion with an employee who is not in a bargaining unit. The subordinate is entitled to a representative only in the context of a criminal investigation, in connection with a grievance, or as a part of a response to a serious disciplinary proposal. Even in a noncriminal investigation, many agencies will permit an attorney or other representative into an interview if the matter under investigation is serious or complicated.

However,employees who are not in bargaining units should be aware that they will have difficulty prevailing on an appeal to the Merit Systems Protection Board if they are fired for refusing to cooperate due to a refusal to attend a meeting without a lawyer present.

The following details situations in which a manager must let an employee’s representative into a meeting or investigation:

Formal meetings. A formal meeting is one that discusses grievances, personnel policies and practices, or other matters affecting general working conditions. The union would likely need to be notified and at least one representative would be allowed into the meeting if it was to discuss a grievance, a proposed or final decision on a disciplinary or performance action, or a matter of concern to employees generally.

It is not a formal meeting — no representative is required to be present — if its purpose is to discuss a matter that concerns only that employee or if it is a brief meeting on a routine topic.

Investigations and Weingarten rights. Before Weingarten rights are applicable, the employee must be subjected to an examination in connection with an investigation. This usually means the employee is questioned about some matter or issue that has arisen in connection with the job. For example, if an employee is to be questioned about his whereabouts the previous day because he is suspected of misuse of official time, this would give rise to Weingarten rights.

The employee’s belief that disciplinary action may result must be reasonable. A concern that it might happen is usually sufficient.

Finally, the employee must request the representation. Be careful, because some agencies have negotiated this away by requiring management to notify the employee of his Weingarten rights.

A manager should check the collective bargaining agreement for clarification of the employee’s rights and the manager’s obligation on this issue.

Q&A Session: Retirement Date Query

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

My supervisor and manager are pressuring me to provide my anticipated retirement date. They have not authorized my attendance at a retirement course, so I do not want to provide the date. Do they have the authority to require me to answer this question?

A:

Your supervisor and his manager may ask you about your anticipated retirement date. You do not have to answer, and if you do, most of the time, you can change your mind. The only downside for your supervisor in asking the question is that the asking of the question could be evidence of age discrimination. Although, without more evidence, the asking of the question alone is probably not sufficient to prove age discrimination.

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How to make a PIP more tolerable — and productive

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Performance improvement plans (PIPs) are not fun for either the manager or the employee. But, both the manager and the employee can make the best of a PIP.

The PIP is a notice to the employee of an opportunity to improve performance, or be fired. From the employee’s perspective, it is almost like being put back on probation, and should be regarded as such. From the manager’s viewpoint, a PIP is a lot of work with a seemingly never-ending period of putting up with a nonperformer.

The employee who receives a PIP notice should take it seriously and respond with a positive attitude and much hard work. The employee should try to impress the manager and not appear to be fighting back against what the employee believes is an injustice. There is no right to grieve a PIP or to file an equal employment opportunity complaint or Merit Systems Protection Board (MSPB) appeal on a PIP alone. Appearing to be uncooperative or belligerent, no matter how wrong the manager is in his or her conclusion about the employee’s performance, will only play into the manager’s hands and make it easier for the agency to prevail on an MSPB appeal.

An employee who is 50 years of age with 20 years of service or any employee who has 25 years of service is eligible for discontinued service, or early, retirement if he is fired for poor performance after failing a PIP. An employee who has the requisite service and who receives a PIP letter should do some serious soul searching about his performance. He should consider the early retirement option if he concludes there is some merit to the supervisor’s PIP, even if he disagrees on the severity of the action. As a general rule, it is difficult for an employee to win an appeal of a performance-based adverse action if the employee has a valid performance standard, goes through a meaningful PIP and has a manager who engages the employee before and during a PIP.

From the manager’s perspective, the PIP can be made easier if the manager is in the habit of maintaining and keeping documentation. Helpful documentation would include e-mails to the employee, notes in the margin of a work product, memos to the employee about performance and memos to the file about conversations between the manager and the employee concerning performance expectations.

A frequent practice in preparation for a PIP is the writing of an extensive PIP notice. Sometimes these notices are the equivalent of a full-length nonfiction book about the employee’s perceived poor performance. There is no requirement to do this. The only requirement is to identify where the employee’s performance has fallen short and what the employee must do to reach an acceptable level. A manager should fully and clearly state these expectations, but does not have to write a PIP notice that covers every eventuality and attempt to rebut every perceived argument that the employee might have. It is just a notice and the manager does not have to spend excessive time on it. A trip to the human resources office will help the manager determine the right balance.

A manager who approaches a PIP with a sincere desire to rehabilitate the employee’s performance will do better on all fronts. Such a manager will make a favorable impression of sincerity with an arbitrator or MSPB judge if the employee fails the PIP and files a complaint. And given human nature, a manager who really cares about improving the employee’s performance may be able to succeed in rehabilitating a poor performer, turning the employee into a productive asset.

The final point for a manager is to offer assistance during a PIP — for instance, having an open door policy, assigning a mentor, or offering training to the employee — and to follow through on that assistance. Failure to do this has, in some cases, resulted in a reversal of a performance-based adverse action.

Both managers who impose PIPs and employees who are subjected to them find the process unpleasant. With some careful attention and the right attitude by both the manager and the employee, the PIP experience will be more tolerable, and, hopefully, more productive.