Happy Fourth of July! Please enjoy this Federal Report from the archives.

Long time feds — and the millions of merchants who depend on their business — have seen teleworking in government explode almost overnight because of the pandemic, after decades of being a minor project in most offices. Working from home has gone from a complicated/emotional exercise, limited to a handful of select workers in smaller agencies to what is likely to be its peak participation this year. In some agencies, six to eight of every ten employees has been working from home for two years or more now.

Teleworking for a long time was a minimal show-and-tell exercise. Purpose: To please Congress. Now it has become a super big deal. And a way of life — many hope — in many agencies around the nation. Agencies once supported telework centers — often leased office space between your home and your office — to show they were all in. Or they would troop out the ‘success’ of the Patent and Trademark Office’s Virginia headquarters where a relatively large number of people worked from home. Sometimes. Along came COVID-19 and almost overnight agencies that had ignored or actively fought teleworking embraced it. Now it appears that the telework program, while here to stay, is in for some shrinkage. Big time.

Eliminating teleworking, which the Trump administration tried, is a little like squeezing toothpaste back into the tube. Doable, but not easy. Now the Biden administration is trying to get more/most workers back in the office but for different reasons. During the BRAC era (the Defense Department’s base realignment and closure efforts) when feds were being moved from city to city, some estimates said that each federal job (or family) contributed significant dollars to six different merchants. So having feds in the neighborhood was a plus. But neighborhood meant near the office, where people could shop, eat and park. While teleworking did wonders shrinking traffic jams and eliminating air pollution, it also resulted in many businesses failing over time, despite huge government subsidies. That’s the primary reason the Biden administration has told federal agencies to get every available home-worker back to the office ASAP.

The impact of the federal paychecks is obvious in the D.C. metro area, which has about 20% of all white collar federal jobs. But the steady, recession-proof payroll is also a major economic driver in metro New York City and Jersey City (56,400); Virginia Beach, Norfolk and Newport News (47,000); Baltimore, Columbia and Towson (41,000); and other places you’d expect. Like San Diego (35,500); Los Angeles and Long Beach (31,000); and Dallas-Ft. Worth (27,000). But the government is also a (or the) primary employer in Ogden, Utah and Huntsville, Alabama (both nearly 20,000 feds); and Bremterton, Washington; Tampa and St. Pete in Florida; Kansas City, Missouri; Richmond, Virginia; Jacksonville, Florida; San Antonio, Texas; Fayetteville, North Carolina; Indianapolis, Indiana; and Alberquerque, New Mexico.

Back in the 90s, some agencies would allow some employees to work from home one day per month so they they could check the box which said they were onboard with teleworking. But just barely…

In the beginning, there were many real and invented obstacles to working from home. Equipment and computers were different. There was the problem of having a dedicated telephone land line (ask your grandfather what that is) among many others. Some officials worried about what would happen if an employee was injured while on the job, but at home. Whose jurisdiction was it? Who paid? Often times the objections were personal. Some bosses then — maybe still — were not comfortable with employees who were not at the office. Were they working, or taking care of kids, watching TV, writing a novel or simply goofing off? In some instances, agency heads worked from home one day a month. That was supposed to satisfy House members (mostly Democrats from the D.C., Maryland and Virginia region) who knew and understood their federal constituents.

Now folks who have been forced or allowed to work from home are being asked to go back to the office. Maybe downtown, maybe in the burbs. But back to the old ways. Many say they’ve never been happier (or more productive) than the past two years. Others say going remote has been a mistake in a variety of ways. Whatever you think, wherever you work (now and in the future), it is a tough call. Some who have been doing it for a long time now think a compromise — work from both home and the office — is the answer. Others say they’ll quit if called back, even as some can’t wait for the return to the “real” office. We’ve been hearing from lots of people who have been-there-done-that. And that’s helpful. Check in if you can and we’ll tell the powers-that-be what “real” people think about this — maybe historic — overhaul. Email me at mcausey@federalnewsnetwork.com

Nearly Useless Factoid

By Robert O’Shaughnessy

Fireworks’ colors are made in the air when metal elements are heated. This excites electrons and releases excess energy in the form of light

Source: Department of Energy

The Supreme Court’s 6-3 decision to overturn Roe vs. Wade on June 24 holds potential ramifications for agency employees across the country, such as the need for some feds to travel across state lines to obtain an abortion.

There are approximately 770,000 federal employees in states that already have abortion bans or are expected to move quickly to enact abortion bans following the decision, according to estimates from the Department of Justice Gender Equality Network (DOJ GEN).

The Office of Personnel Management issued a June 27 fact sheet reminding federal employees that they can use sick leave to get medical care, including time spent traveling to obtain that care.

Additionally, agencies can grant advanced sick leave to employees who haven’t accrued enough — and that applies to travel time associated with sick leave. The policy also covers federal employees taking family members to medical appointments.

“This may include, for example, providing transportation and/or accompanying a family member to a health care provider’s office or to a hospital or other health care facility,” OPM stated.

Although OPM’s reminder did not specifically mention abortion, the federal sick leave policy includes reproductive health services.

But some groups, like the American Federation of Government Employees (AFGE), are calling on the federal government to go beyond sick leave to provide paid administrative leave to cover health care services.

“The federal government, as a model employer, must immediately agree to provide paid leave and cover the travel costs of any federal or D.C. government employee who must leave their state of residence in order to obtain an abortion,” AFGE National President Everett Kelley said in a June 25 statement.

Relying on the existing sick leave policy will “disproportionately harm women and other employees who need to travel for abortion care,” Stacey Young, the president of DOJ GEN, told Federal News Network.

The group describes itself as an “employee-run organization” with 1,150 members that has advocated for gender equity and equality at the Justice Department since 2016.

“You shouldn’t have to use more sick leave now that states are banning abortion,” Young said. “The federal government can mitigate the harm by allowing employees to use administrative leave for travel, which will not require employees to dig into their limited sick or annual leave more than they already need to. The government can also pay for public servants’ travel, in same way that private employers across the country are already doing.”

Young also pointed to how agencies provided employees with additional paid time off so they could get vaccinated against COVID-19.

“We think that the administration would need to figure out how employees could request administrative leave without having to disclose their need to an immediate supervisor or someone else in their office,” Young added. “Privacy measures are paramount when it comes to reproductive health care.”

The White House did not respond to a request for comment on whether it was planning to provide federal employees with additional paid leave and covered travel expenses.

There’s another caveat that affects federal workers seeking to obtain abortions: Currently, the Federal Employee Health Benefits (FEHB) Program does not cover the cost of abortion services.

But that’s something House Democrats are trying to change. The House Appropriations Committee’s fiscal 2023 financial services and general government bill includes a provision that would remove the FEHB ban on abortion coverage.

Although House appropriators included the provision in the draft spending bill last year, too, it didn’t make it into the final version. The committee approved the 2023 spending bill on June 24, but it still has to make it through both the full House and the Senate, which could mean more revisions to the legislation.

Lawmakers will likely need to overcome the Hyde amendment to remove the FEHB ban on abortion coverage. The Hyde amendment is a standing legislative provision that bars the use of federal funds to pay for abortions, except in cases that endanger the life of the patient, or if the pregnancy arises from incest or rape.

Meanwhile, Young from DOJ GEN said the Hyde amendment should not be a factor in providing paid leave and covering travel expenses for federal employees seeking abortion services.

“For decades, the Hyde amendment has placed undue obstacles to federal employees’ access to reproductive healthcare,” she said. “But under its plain language, ancillary expenses that don’t actually pay for an abortion itself aren’t covered. So providing money to fund administrative leave, or even directly paying for employees’ interstate travel, I don’t think that would in any way run afoul of the amendment.”

Federal health care workers

Along with federal employees who may decide to obtain an abortion, agency leaders are also offering some guidance for federal healthcare workers. Attorney General Merrick Garland said the Justice Department is working to protect federal employees who provide reproductive services that are allowed under federal law.

“Federal employees who carry out their duties by providing such services must be allowed to do so free from the threat of liability. It is the department’s longstanding position that states generally may not impose criminal or civil liability on federal employees who perform their duties in a manner authorized by federal law,” Garland said in a June 24 statement. “The Justice Department is prepared to assist agencies in resolving any questions about the scope of their authority to provide reproductive care.”

The Department of Veterans Affairs, which employs some of the government’s reproductive health care workers, said it is continuing healthcare operations consistent with legal authority.

“Access to gender-specific reproductive health services, including contraception and fertility services, is and will remain a critical component of veteran health care,” VA Secretary Denis McDonough said in a press statement. “VA will work with DOJ to ensure the full strength of the federal government is available to defend eligible VA employees if necessary. Our commitment to providing reproductive health care to the veterans we serve is unwavering. We recognize this is a rapidly evolving landscape, we are monitoring the situation closely and will remain in close contact with you.”

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Just because you apply doesn’t guarantee you’ll get federal security clearance. Lots of people make basic errors in their clearance and suitability forms and that can make things take longer than they should or maybe deny altogether. Here with some tried and true advice on the mistakes to avoid, Shaw Bransford & Roth attorney James Heelan spoke to the Federal Drive with Tom Temin.

Interview transcript: 

Tom Temin: Mr. Heelan, good to have you on.

James Heelan: Hi, morning Tom, thanks for having me.

Tom Temin: Let’s begin with the process itself. This is that one where I think I read that form once, it’s something like 52 pages, or is it Form 52? Or tell us about some of the details.

James Heelan: I think you’re talking about the SF 86. It’s the standard application that all civilians and military personnel, contractors fill out, anyone who wants to get access to classified information. They fill out the SF 86. It’s about 125-some pages, and it is a thorough examination of a person’s life, history, really their whole adult experience. And it asks all sorts of questions that the government thinks are relevant to whether that person is trustworthy. To protect national secrets.

Tom Temin: How long does it typically take someone, say the first time around, to get through all of this form filling?

James Heelan: I have to give you that standard lawyer answer: It depends. If I’m a 22-year-old intern, and I’m on a congressional committee, and I’m applying for my first clearance, I don’t have a whole lot of life experience to report. Maybe I have some juvenile arrests that I would be compelled to disclose on the SF 86. Potentially, I’ve moved around a bit. But it’s a pretty simple application if you’re a young person applying for the first time, and you might go through the investigation within six to eight months, or could be even quicker. But let’s say you’re a full grown adult, and it’s your first time filling out that Sf 86. You have a lot of things to report. You may have many foreign contacts, perhaps you’ve lived abroad, perhaps you’ve been married before, and the government may be interested to understand the circumstances of the divorce and separation. So it all depends on how much life experience you have behind you, and how much the government has to examine.

Tom Temin: Well, at 125 pages, I guess it’s easy to have typos and so forth, of things you left out. So what mistakes do people make, do you find, that they should avoid and kind of have top of mind before they start?

James Heelan: At our firm we see five top mistakes, things that come across our desks most often. Most often we see people miss reporting or failing to report drug use and involvement. The SF 86 asks about seven years of drug use and involvement. Nowadays, involvement is so broad to mean things including investment in marijuana activities. So several years ago, when pot stocks hit the market, I got several calls from potential new clients asking me about their investments, whether they had to divest before filling out the SF 86. And the answer is that they do, they should be aware of their investments and divest of them before they try to obtain a national security clearance.

Tom Temin: And that even includes, say mutual funds or managed funds where there could be scores, dozens, hundreds of individual stocks within that fund.

James Heelan: Actually, it doesn’t. That’s a really excellent point. The Office of the Director of National Intelligence recently, a couple years ago, released a memorandum specifically on marijuana. And it specifically addressed investments and said that indirect investments where a person isn’t reasonably expected to know every single stock that their money is invested in are acceptable. But you can’t just go out and invest in a pot stock directly out in the marketplace.

Tom Temin: And by the way, just as an ancillary, what about cryptocurrency, which is slightly shady to begin with?

James Heelan: I haven’t had any cryptocurrency issues come across my desk.

Tom Temin: All right. So that’s number one drug use and involvement. What’s the second big mistake?

James Heelan: The other is arrests. People think that just because there was an arrest that didn’t result in a charge, or that their record was expunged, they think that they don’t need to report these arrests. But the SF 86 is explicit. Even if an arrest is expunged, or if it was done away with through some sort of settlement agreement or alternative resolution program, you still need to disclose it on the SF 86 report in your investigation. People try to rationalize their way out of reporting things. They say, well, the Court told me that I wouldn’t have a record and the officer told me there wouldn’t be a report written up. Well, it’s still responsive to the question on the 86. And if you don’t report it, the background investigator, I assure people out there, will find out.

Tom Temin: We’re speaking with James Heelan. He’s an attorney with Shaw Bransford & Roth. And what’s the third biggest mistake?

James Heelan: Foreign contacts. This has been a real developing issue over the last 15 years especially with social media. People go on vacation, they befriend some people, they become Facebook friends, they follow them on Instagram. It took a long time for security clearance adjudicators to really decide what a friend meant, for example, on Facebook. So people get into trouble because they forget the foreign contacts they have in their lives. And it’s awful difficult, especially if you live in an area like D.C. where you have foreign nationalities next door at the bars and restaurants you usually go to, you may have friends with spouses or in-laws who come from different countries. Those are all reportable foreign contacts. The big concern is that a country may use a foreign national to surreptitiously persuade you into divulging or otherwise compromising national security interests.

Tom Temin: Right. So if you went to France, it’s not every waiter that you met in the cafes and Saint-Germain-des-Prés, but just maybe someone you might have retained friendship with and have regular correspondence with, say, as you mentioned, on social media?

James Heelan: Exactly. It’s the kind of person let’s say, you made real fast friends on your cruise ship and said, “If you’re ever in town, you can stay on my couch, you can stay at my place.” That’s the kind of person you need to report.

Tom Temin: And just to be clear, if say, a nextdoor neighbor, or someone that you are friends with day to day, you may not even know if they’re a foreign national. An accent is not necessarily an indicator one way or the other.

James Heelan: Right. But your obligation is just to report what you know. Right? Not just what you remember, you have a duty to do due diligence and dig in and really assess your own life and then report out.

Tom Temin: And if it isn’t neighbor, it’s likely they could be visited by that investigator anyway, because I, myself have been visited about my nextdoor neighbor a couple of times over the years.

James Heelan: Exactly. And that just goes to show even if you don’t disclose it, the government will likely find out and they’ll likely ask you about it. And you don’t want the first time you know about something to be in your investigatory interview.

Tom Temin: All right, and number four?

James Heelan: Prior job issues. People are required to disclose whether they left a former position and the circumstances under which they left the position. And people think oftentimes, again, with settlements, they say, Well, there’s a confidentiality clause. There’s nothing in my [Official Peronnel Folders], there’s no record of a proposed removal or a difficult circumstance that compelled me to leave the job. People, like I said, try to rationalize why they don’t need to disclose but the form is explicit. If you left your job after learning that you’re going to be forced to leave your job. Or if you’ve left your job under any kind of agreement or specific circumstances, you need to disclose. And so people get in trouble because, like I said, they rationalize and they decide the rules somehow don’t apply to them.

Tom Temin: The theme I’m hearing here is that even though things might be confidential from a legal standpoint, and whatever agreements you might have had established by a court, or some kind of a judging randomization, that doesn’t matter for purposes of reporting on your SF 86.

James Heelan: Exactly, exactly. The SF 86 doesn’t care about whatever legal fiction exists out there, and agreements and settlements and confidentiality clauses that might apply. The SF 86 is interested in the reality. They want to know what you have done in your life and want to be able to investigate it. They want you to be upfront and disclose it.

Tom Temin: And then that leads us to the fifth biggest mistake.

James Heelan: The fifth biggest mistake encapsulates everything I’ve just said it’s lacking care and thoroughness on the SF 86. Not thoroughly reviewing your personal records not going through your credit report to report any sort of what’s called derogatory information on the SF 86. People, it’s not a quick form. It’s lengthy for a reason. It deserves lots of time and attention. You want access to national security information, you should do your own due diligence before you apply.

Tom Temin: And should you have someone review it, even though there is a lot of confidential stuff in there that is the government’s right to know but perhaps nobody else’s? But I mean, I guess –

James Heelan: As an attorney in this area of law, I would say absolutely. I would say absolutely have an attorney review it. People can review it for thoroughness, they may want to go through all of your documentation with you. There’s different levels of service out there that attorneys will provide.

Tom Temin: And it strikes me that if someone is in this general field of perhaps working for or with the government, even if you don’t anticipate anything in the near future, requiring clearance, is it a good idea just to download the SF 86 and go ahead and fill it out, so you’ll be ready should the time come? If you like self torture?

James Heelan: You really want to be prepared? Sure. It could be like updating a resume. You keep it up to date. And as you go along, you continue adding the addenda. I haven’t done that myself but I could see some people out there wanting to be awful prudent. Follow that kind of advice, yes.

Tom Temin: All right. 125 pages. So if you do a page and light, it’ll only take you four months.

James Heelan: Or a very long weekend.

Tom Temin: Yeah, or a very long weekend. James Heelan is an attorney with Shaw Bransford & Roth. Thanks so much.

James Heelan: Thanks a lot, Tom.

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Federal employee whistleblower complaints are often investigated by the agency itself, rather than by the Office of Special Counsel. This can speed up resolutions or end up with complaints going nowhere or even suppressed. Bob Tobias, a professor in the Key Executive Leadership Program at American University, has looked into this question. He joined the Federal Drive with Tom Temin with some perspective.

Interview transcript:

Tom Temin: And, Bob, it seems that there is no one perfect way to deal with whistleblowers but having the agency do it internally doesn’t always work out, does it?

Bob Tobias: It does not. Former President Trump in 2017 argued in an executive order that the Department of Veteran Affairs should be allowed to investigate the whistleblower complaints internally, in the interest of resolving them faster and more efficiently. And then the executive order was later turned into a statute. But that approach, I think, runs into the real challenge of what it means to investigate internally. Because what it requires is a focused attention and support a political appointees who are willing to hear bad news, see bad news published in newspapers and on social media, accept responsibility for the bad news, and then take action to turn the bad news to good news.

Tom Temin: But let me just ask this: In some agencies, it is the inspector general’s office that looks at whistleblower complaints. And we’ve seen that even at VA, and so therefore, you do have some independence there. And the inspector general doesn’t care if the news is bad.

Bob Tobias: Well, yes, theoretically, Tom, but when we do have a recent evidence of the [Department of Homeland Security] inspector general, who suppressed over 10,000 DHS employee sexual assault complaints, and when it was discovered, Secretary [Alejandro] Mayorkas created a new, centralized process for processing employee complaints. But I ask in the long term, will that work because maybe the next secretary of DHS will use the idea of centralized decision-making to suppress those complaints in the future?

Tom Temin: Right, so then having an external body like the Office of Special Counsel, you run into the issue of just sheer workload, sheer time it takes and as we’ve seen so many adjudicative types, or investigative types of processes by federal agencies internally or externally just take so long.

Bob Tobias: Well, I think the answer to that, Tom, is to beef up the Office of Special Counsel, rather than to depend on the long term, on political appointees meeting that high bar of allowing themselves to look bad. While there may be individual political appointees who accept responsibility for the failure of those they lead, and more importantly, for their own failures, we can’t depend on every political appointee over the long term, to meet that bar.

Tom Temin: We’re speaking with Bob Tobias, professor in the Key Executive Leadership Program at American University. And I guess it’s understandable why some politicals would want to avoid this. There was a administrator of the GSA a number of years ago, I think, early in the Obama administration, and I remember the scandal of the expensive Las Vegas conferences that GSA was doing. And it was a scandal. And you had a crooked bunch running this thing, and taking junkets paid for out to Las Vegas to check the venue, three or four times. And there was the famous picture of the guy with the wine glass in the bathtub and all of this. But it was the administrator that took the fall, even though this all occurred entirely before she even arrived at the agency. And so her career was sullied and her reputation to some degree, even though she had literally nothing to do with it.

Bob Tobias: Well, that’s true. Because what can happen in that kind of a situation is a culture of noncompliance can develop. And in a culture of noncompliance, the people in charge suppress any complaints and continue to behave as you just described. So in my view, the only way of managing and as in the case, you pointed out, someone who was innocent, but took the hit is to encourage an outside investigative authority like the Office of Special Counsel to do its work, but do it faster.

Tom Temin: Right, because really, it was not fair for this person to take the hit for that and she exposed it and said, we really made a big mistake here. Which was gracious of her but it really wasn’t that person’s mistake. And so that, again, you’re saying mitigates in favor of external look at these events entirely.

Bob Tobias: I think so, Tom, I think so. There isn’t any evidence anywhere over the long term of successful looking internally at oneself by political appointees, finding fault and fixing that fault.

Tom Temin: But I want to get back to the inspector general question because, yes, IG’s are also politically appointed. But their purpose in life is to have this external, or at least objective, outside-of-the-agency chain of command view of things, no matter how bad they might be. So why can’t IG’s step up more here?

Bob Tobias: They can, and they should. But it only provides for me proof of the fact that no, we can’t depend on every political appointee to be fault free. And the only way we can make sure that it doesn’t occur is to have, not only is to have the Office of Special Counsel be able to investigate problems in IG offices as well.

Tom Temin: Well, that question I think is probably going to be resolved not for quite a while because the whistleblower complaints come in. And I think this is going to be something we were going to deal with for a while.

Bob Tobias: Well, I think it is. But I think it’s also true that when you have a over-2-million-person workforce, there are going to be people who fail to follow the laws, rules and regulations, to make sure that these complaints get surfaced and an employee’s career is not damaged for surfacing these problems.

Tom Temin: All right, Bob Tobias is a professor in the Key Executive Leadership Program at American University. Thanks so much.

Bob Tobias: Thank you, Tom.

The new order from the 5th U.S. Circuit Court of Appeals in New Orleans vacates an earlier ruling by a three-judge panel that upheld the mandate. The new order means a block on the mandate imposed in January by a Texas-based federal judge remains in effect, while the full court’s 17 judges take up the appeal.

Biden had issued an order Sept. 9 requiring that more than 3.5 million federal executive branch workers undergo vaccination, with no option to get regularly tested instead, unless they secured approved medical or religious exemptions.

U.S. District Judge Jeffrey Brown, who was appointed to the District Court for the Southern District of Texas by then-President Donald Trump, issued a nationwide injunction against the requirement in January. At the time, the White House said 98% of federal workers were already vaccinated.

Brown’s ruling was followed by back-and-forth rulings at the 5th Circuit.

In February, a 5th Circuit panel refused to block Brown’s ruling pending appeal.

But after hearing arguments in March, a different panel ruled 2-1 that Brown did not have jurisdiction in the case. The panel said those challenging the requirement could have pursued administrative remedies under Civil Service law. Although the ruling was issued in April, it was not to officially take effect until May 31.

Judges Carl Stewart and James Dennis, who were nominated to the 5th Circuit by Democratic President Bill Clinton, were in the majority. Judge Rhesa Barksdale, a senior judge nominated by Republican President George H.W. Bush, dissented, saying the relief the challengers sought does not fall under the Civil Service Reform Act cited by the administration.

Barksdale is a senior judge, meaning he has a reduced case load and is no longer on active status at the court. Because he was part of the ruling panel he can participate in the reconsideration with the active judges. Of the 17 judges currently listed as active judges at the 5th Circuit, 12 are appointees of Republican presidents, including six nominated to the court by Trump.

When the case was argued before the three-judge 5th Circuit panel in March, administration lawyers had noted that district judges in a dozen jurisdictions had rejected a challenge to the vaccine requirement for federal workers before Brown ruled.

The administration argued the Constitution gives the president, as the head of the federal workforce, the same authority as the CEO of a private corporation to require that employees be vaccinated.

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• New legislation would make it easier for security clearance applicants to overcome a history of using marijuana. A provision in the Senate Intelligence Committee’s 2023 intel authorization bill would prohibit agencies from denying a clearance solely based on the applicant’s previous pot use. The provision was championed by Sen. Ron Wyden (D-Ore.). He’s also pushing to make it so ongoing marijuana use is not the basis for denying or losing a clearance. Today, cleared individuals can still expect to forfeit their clearance due to ongoing pot use, even if it’s legal in the state in which they reside.

• Kiran Ahuja reaches one year as director for the Office of Personnel Management. Ahuja is the first confirmed OPM director to reach one year in office since 2015. After implementing changes like adding time off to vote and updating telework policies, Ahuja said she’s pushing for more reforms to federal recruitment, “We’re going to stand up a chief diversity officer council, which is something that will be coming this summer, paid internship guidance that will be coming out later this summer. We want to ensure that federal jobs and opportunities are accessible to all, as well as doing some reforms to the Pathways Program.” (Federal News Network)

• Agencies have some new guidance for securely using cloud services. The Cybersecurity and Infrastructure Security Agency updated its Cloud Security Technical Reference Architecture this week. The agency received more than 300 comments on the original TRA released last September. The new document reflects requests to bring the guidance in line with the federal zero trust strategy, clarify its connections to the FedRAMP program, and create more consistency with Identity and Access Management capabilities.

• Health and Human Services welcomes its inaugural class of digital fellows. The fellows are part of an early career program to get technology career workers into government. At HHS, the fellows will use data, analytics and innovation to help with pubic health outreach. The program is designed to recruit new tech employees into federal government. Fellows come from a variety of backgrounds ranging from recent college grads, to software engineers and product managers. The Office of Management and Budget last week announced the 41 fellows who will spend the next two years working at 13 different agencies to solve technology challenges.

• Frontline employees at the Federal Emergency Management Agency may see more resources from federal leadership. FEMA Administrator Deanne Criswell requests funding in the fiscal 2023 budget to expand mental health programs for agency workers. That’s as FEMA faces staffing shortages and a now year-round pace of disaster response in the U.S. Criswell said the agency is analyzing its future staffing model to determine how to increase services, without placing more strain on employees. FEMA’s budget request also includes $6.4 million for the incident management workforce.

• A bill to make federal buildings more resilient against natural disasters makes it through the Senate. The Disaster Resiliency Planning Act would require the Office of Management and Budget to issue guidance to agencies on how to make natural disaster resilience part of their asset management decision-making. OMB would also work with the Government Accountability Office and the Federal Emergency Management Agency to help agencies identify potential gaps in their disaster resilience prevention efforts. Senate Homeland Security and Governmental Affairs Committee Chairman Gary Peters (D-Mich.) and Senator Rick Scott (R-Fla.) introduced the bill.

• The upside to Congress’ decentralized nature is that innovation can come from anywhere. The downside is that coordinating those innovations is hard. Current and former staffers say technology can and has solved many common problems for members of Congress, but they want to see members tap into more commercial-friendly platforms and give centralized authority to bodies like the Bulk Data Task Force, or the House Digital Service. The House Modernization Committee said they agree Congress needs better collaboration on tech solutions but it may take dedicated staff from each member office. (Federal News Network)

• Federal contractors and subcontractors have less than a week to certify their compliance with their affirmative action requirements. The Labor Department’s Office of Contractor Compliance set a June 30 deadline for vendors to submit their plans to the OFCCP Contractor Portal. Labor found most contractors and subcontractors were not meeting federal affirmative action requirements forcing them to create this new rule. It mandates companies, on an annual basis, to develop and maintain annual affirmative action plans and upload them to the portal. Contractors and subcontractors who fail to register or certify their compliance will face an audit from Labor.

• The IRS is looking to diversify its contractor base. A new request for information published on SAM.gov says the agency is doing market research. It wants to determine if there is a sufficient population of contractors capable of providing goods and services the IRS needs. The RFI specifically asks for responses from businesses that qualify for socio-economic set-asides. IRS is looking for responses by July 12.

• The Department of Veterans Affairs is now better at negotiating prices of pharmaceuticals. The VA’s National Acquisition Center heeded the advice of its inspector general and renegotiated prices with 10 pharmaceutical suppliers and achieved almost $43 million in immediate savings. The acquisition center went back to the contractors after the IG found all 10 did not have valid reasons for not offering the agency most-favored-customer pricing. The IG also found the acquisition center didn’t reliably track all the items contractors offered through the Price Reduction Clause, causing the higher prices. VA expects to save more than $328 million over the life of the contracts.

• The Department of Veterans Affairs encourages veterans to self-check for Post Traumatic Stress Disorder on PTSD Screening Day, June 27. The agency shared a 50-second self-evaluation to help determine if the subject may have symptoms of PTSD by answering six questions. Paula Schnurr, the executive director of the National Center for PTSD said that the message they want to send is one of hope and she said that PTSD is treatable and a normal response to trauma.

• The concept of a government scorecard for customer experience is coming into focus. Former federal officials suggest a customer experience category could be added to the Federal IT Acquisition Reform Act scorecard, or could exist as a standalone scorecard. Matt Lira, former special assistant to the president for Innovation Policy and Initiatives tell the Senate Homeland Security and Governmental Affairs Committee a FITRA-like scorecard for CX would get results. “It’s tangible, it’s binary, it’s quantitative. And I will say firsthand, being on the other side of Pennsylvania Avenue, it was an incredibly useful tool, the FITARA scorecard, in driving agency deliverables,” Lira said. (Federal News Network)

• Two observers of federal management have a list of nine tenets for more agile government. The National Academy of Public Administration and the Project Management Institute’s latest report, “Agile Regulation: Gateway to the Future,” outlines an agile regulatory framework with tenets like collaborating early and often on regulatory development, using small inclusive teams to manage the regulatory development process, and automation tools. NAPA President Terry Gerton saidthat after the pandemic, the public sector must begin to operate differently and make public satisfaction the top priority.

Homeland Security Secretary Alejandro Mayorkas announced the changes in a statement last week. They follow a 45-day review led by DHS General Counsel Jonathan Meyer.

“Based on the results of that review, I have directed the department to implement significant reforms to our employee misconduct discipline processes, including centralizing the decision-making process for disciplinary actions and overhauling agency policies regarding disciplinary penalties,” Mayorkas said in the statement.

Mayorkas ordered the review after the The New York Times and the Project on Government Oversight published draft findings from the DHS inspector general’s office. POGO’s report included an unpublished draft of a sexual misconduct review, as well as findings from a report on DHS’s handling of domestic violence that were ultimately removed from the final document released in November 2020.

The unpublished reports have also led lawmakers to question DHS Inspector General Joseph Cuffari about his office removing damaging findings from the reviews.

In his latest statement, Mayorkas called the reports “deeply concerning” and said they underscored the need for action to address harassment and other misconduct at DHS.

“Centralizing disciplinary processes will ensure that allegations of serious misconduct are handled by a dedicated group of well-trained individuals, who are not the employees’ immediate supervisors, at each DHS component agency,” Mayorkas said.

The DHS head also said the department would be reforming its policies around disciplinary penalties, “including by providing more specific guidance, will promote accountability and ensure consequences are consistent and appropriate based on the severity of the misconduct.”

Mayorkas said the reforms are “already underway.”

“As it proceeds through the coming months, DHS will continue to engage with the labor organizations representing our employees to ensure the continued protection of employees’ due process rights,” he added.

DHS did not respond to a reporter’s email seeking more information about the new policies and the timeline for implementing them across the department’s components.

In April, POGO published draft DHS OIG reports focused on misconduct within Customs and Border Protection, the Secret Service, Immigration and Customs Enforcement and the Transportation Security Administration.

An unpublished sexual misconduct review obtained by POGO shows more than 10,000 employees from the four law enforcement components said they have experienced sexual harassment or misconduct in the workplace, representing over one-third of the 28,000 employees who responded to a survey conducted as part of the evaluation.

POGO also obtained draft findings that were removed from a 2020 DHS OIG report that found cases in which DHS internal affairs substantiated domestic abuse allegations against law enforcement personnel, but they “received little or no discipline and remained a law enforcement officer with access to a firearm.”

In a statement, House Committee on Oversight and Government Reform Chairwoman Carolyn Maloney (D-N.Y.) applauded DHS’s announcement of new misconduct policies. She also referenced an investigation by the committee into CBP’s handling of 60 employees who participated in an offensive Facebook group mocking migrants and lawmakers.

“CBP reduced discipline for dozens of agents and allowed them to continue working with migrants — including vulnerable children — despite violent and offensive Facebook posts,” Maloney said. “The department’s announcement takes steps to correct failures uncovered by the committee, and I applaud Secretary Mayorkas for his efforts to reform CBP’s deeply flawed disciplinary process.”

Prior to the Senate’s May 25 confirmation of Cathy Harris as the third and final MSPB member, previously confirmed members Tristan Leavitt and Raymond Limon have been chipping away at a small number of the pending cases.

Leavitt and Limon have “made good headway” by issuing 200 decisions out of an initial group of about 300 cases that the MSPB staff handed to the board, Harris told Federal News Network in an email.

“Once we finish that group, I expect the staff to provide us with a next grouping of 300 cases or so,” Harris said.

MSPB reached quorum for the first time in five years after the Senate confirmed Leavitt and Limon in March. With Harris now the official third member, this is the first time MSPB has had a full three-person board in seven years.

MSPB is tasked with protecting federal employees against prohibited personnel practices, such as whistleblower retaliation and employees who believe they were wrongly terminated. Federal employees and agencies can appeal to the three-member board about cases on which an MSPB administrative judge previously issued a decision. The board members then adjudicate those cases.

Harris currently serves as acting chairwoman for MSPB, overseeing hiring and litigation decisions, and overall management of the agency. The Senate has not yet confirmed Harris as chairwoman.

Confronting the MSPB backlog

After the Senate confirmed her, Harris said she, Leavitt and Limon are primarily focused on the 3,600 cases that the board must adjudicate. The backlog grew significantly during the absence of a quorum for the board.

“Appellants and agencies have been waiting for years for resolution, and it is our responsibility to adjudicate these cases thoroughly and efficiently,” she said.

Breaking down how exactly to take on the huge pending caseload is complicated. To start, the MSPB staff gave the board a large mix of case types.

“These include … cases that may include an award of backpay, whistleblower cases, certain retirement cases and several of the oldest cases. The grouping also includes some simpler cases to assist us in getting our feet wet,” Harris said.

But how quickly the board can get through the pending cases is still in the air. Mark Robbins, a former MSPB board member, said the new board could start by focusing on cases with clear-cut decisions, but getting through the simpler decisions quickly still means there are more complex cases left in the backlog.

“You’ve cleared a lot of brush, but you’ve still got some big trees that need to be either taken down or pruned,” Robbins said, who now works at the Election Assistance Commission.

The board will, in part, prioritize cases based on how old they are, but will also include some newer ones, depending on how time-sensitive the issues are, Harris said. Certain cases may have pressing issues that should be adjudicated more immediately.

If MSPB pushed all new cases to the back of the decision line, it would be a long time before the board voted on them. By the time the board got to them, Harris said, those cases would have to be updated or possibly reworked because of changes to statutes, regulations and case law. The delays would create processing inefficiencies.

Along with the backlog, the board will have to continue working through new cases as they come in.

“You’ve got active new cases coming in, which may be equally as important. The backlog doesn’t exist in a vacuum,” Robbins said.

Robbins added that approaching the backlog with a mix of cases, by folding in a few easier ones, can help the members focus on some of the older or harder cases, and learn how to best collaborate as a full board.

“They’re going to have to get used to working with each other [and] their staffs are going to have to get used to working with each other,” Robbins said. “As an initial path forward, doing a little bit of a mix is probably good because it will give the three members of the board an opportunity to see what actually is in the backlog, what’s coming in now [and] where might they need to focus given that they’re all three new to the board.”

Jim Eisenmann, a former executive director and general counsel for the MSPB, now a partner at Alden Law Group, said using “short-form” opinions may help sift through the backlog more quickly.

Those decisions, which offer little explanation in cases where the board doesn’t decide in the employee’s favor, comprised about 75% of cases up until about 2010. Then, more detailed decisions started becoming prevalent, requiring more work for the board to get cases out the door.

MSPB members: Three versus two?

Although the board reached quorum in March, having a third member still makes a significant difference. The three-member body will help avoid potential ties on cases, along with some other issues the board can prevent now with three rather than two members.

“Once a quorum was restored, the board members could vote on cases. However, if they split their votes, the decision of the administrative judge would become final. Having three board members permits for a full appellate review of the initial appeals and eliminates the issue of split votes,” Harris said. “If one board member must recuse from a case, it permits the appeal to still be voted upon by the other two board members.”

She added that a three-person board will help MSPB move through the backlog more quickly, as there are now more people to review and process cases.

Complicating the situation, though, employees whose cases have been pending for several years may have challenging aftereffects of the board’s decision, Robbins said. If a decision goes in favor of an employee, the individual, for example, might be entitled to backpay. In some cases, the board may require an agency to rehire the employee.

“That means they’d get their old job back, which after six years, you’ve got to wonder what the agency has done with that job. Did they backfill it? Does it even exist anymore? Did they go through restructuring?” Robbins said. “Now the agency is going to have to figure out what it wants to do with that. How do you deal with bringing in someone who hasn’t been around for that long? That could be very complicated.”

Along with issuing case decisions, MSPB is also responsible for reporting on the health of federal workforce management. MSPB conducts special studies on agencies to report to the White House and Congress, determining if federal workers are adequately protected from prohibited personnel practices.

The board was unable to completely fulfill this duty before reaching quorum, but in the meantime the board’s Office of Policy and Evaluation continued to publish a monthly newsletter related to some of the report topics.

Eisenmann said the office would also have already issued draft reports in preparation for the new board coming in.

“There are reports about recruitment, hiring, retention, performance management [and] supervision,” Eisenmann said. “It’s an important function of the board. The studies are often cited by members of Congress and other nongovernmental organizations regarding best practices [and] the state of the law in certain areas,” Eisenmann said.

Harris said as part of her new role, she’s focused on working with the other two members to release some of those reports.

Although her background is partly in the private sector, Harris has a long history of representing federal employees and agencies before MSPB, the Equal Employment Opportunity Commission and in federal courts.

“I developed a broad understanding of the federal-sector case law that applies in MSPB cases, which is helping me render decisions in the cases before me. After being in private practice for quite some time, I am honored to have the opportunity to return to public service,” she said.

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Last month, the House passed a resolution that helps pave the way for its staff members to unionize. The measure essentially grants House staffers the same legal protections other federal employees have against retaliation if they do try to formally organize a labor union. Backers say it’s needed in part because of low pay and high turnover on Capitol Hill. But not everyone thinks it’s a good idea, including Suzanne Bates, a senior writer and researcher at Americans for Fair Treatment, a group that calls itself a union watchdog. Bates talked about what she sees as the downsides on the Federal Drive with Tom Temin.

Interview transcript:

Suzanne Bates: This is a new thing, organizing political staffers. We’ve seen it in some campaigns. And now we’re seeing it in some state legislatures. And then Congress is kind of the big prize, I think, at the end. And so our concerns are that this is already a very political space. Unions are political organizations. They spend a lot of money on politics, including elections and lobbying, $2 billion by their own accounting last year. So I think this is just going to make Congress more political than it already is. And it may lead to some unhappy staffers, not to mention members of Congress.

Jared Serbu: We don’t have a lot of experience with unionizing among members of legislative bodies. But there’s plenty of experience at the agency level. A lot of those folks are in our audience right now listening, and I think they would probably bristle at the idea that membership in a union is affecting their work or influencing their work decisions. So what’s the evidence that this would be a problem in the legislative branch?

Suzanne Bates: Sure, we’re already seeing, I mean, we’ve seen unions in federal and state agencies trying to use their positions to gain a foothold on policy issues. The latest example is the American Federation of Government Employees. One of their locals that represents EPA employees said that during collective bargaining, they plan to ask for a climate emergency declaration by President Biden. That’s, I mean, that’s not what we traditionally think of as collective bargaining, right? We think of it as being just about what the employee needs, their benefits, their pay, their working conditions. So when you add in sort of the public sector, it adds another layer of politics, and it becomes more complicated. And especially if you see something like that, where a union that represents people, members of the bureaucracy asked for an actual policy change in collective bargaining, what does that mean, for Congress, right, where you’re already talking about political staffers? There was sort of this idea that there was a dividing line between people who work for agencies, like you said, and then people who worked in political offices, because, members of Congress, members of state legislators need to be able to be more nimble, perhaps in their hiring and firing decisions. This is going to change that. I mean, we really don’t have that much experience with seeing unions in a politicized environment like this, it’s going to be very different, I think, than what you see at the agency level.

Jared Serbu: And the EPA example, you just used, I can totally understand, disagreeing with the position the union took, there in negotiations. And EPA is free to say, “You’re crazy. We’re not doing that. It’s not your position to make that request in the first place.” But it’s hard for me to get from there to public employees should therefore not have the right to organize. Draw that connection a little more closely, if you could?

Suzanne Bates: Yeah, no, I’m not saying public employees should not have the right to organize. And especially, I mean, again, at the agency level, I think we have a history of that now, we’ve seen sort of how it plays out. I do have some concerns. I mean, we work with public employees who’ve been harmed by their unions in some way. And so in a public environment, it changes the dynamics a lot, because you’re talking about people who can help elect the people who they’re bargaining with, right? And so it just changes the dynamic versus a private sector environment where you’ve kind of got this natural tension between the bosses and the workers, right. It’s just a different environment in the public sector. But we’re not saying you shouldn’t unionize the public sector. But I do think, again, the political staff, it’s just a next level. So what happens if you don’t like what your boss is doing? Do you threaten to primary the member of Congress? Do you spend money in a primary? I mean, we already know that unions do spend money in primaries trying to get rid of, or at least they fund organizations, for example, the Working Families Party, which is mostly Union funded. Primaries, members of Congress and members of state legislatures that are, who are not progressive enough for them. So what kind of bargaining chip does that create in Congress, right, where you’re talking about your boss is a member of Congress. And so are you going to use that leverage? I just think it raises questions and concerns that don’t exist again, at the agency level.

Jared Serbu: In the legislative branch, I want to address the issue of referring to these folks as political creatures. Some of them certainly are. I mean, you’ve got tons of examples of legislative assistants and communications directors, et cetera, et cetera, moving back and forth between the campaign and the congressional office. There’s a lot of people too, though, that spend their time on policy stuff, especially at the committee level. Could you could you solve some of the concerns that you have by, I don’t know, narrowing the right to unionize in some way so that people who are more directly involved in the political side of things are restricted? Or let me broaden the question out even further, is there anything in this House resolution that you would change to solve some of the concerns that you have while allowing some kind of organizing?

Suzanne Bates: Well, so we don’t know yet what the scope of collective bargaining will be. And so that wasn’t addressed in this resolution. So there’s still so many unanswered questions. So I mean, there’s some idea that we won’t see bargaining over wages or benefits. So what will they bargain over? So I think if you have a very narrow scope, then potentially, but maybe something besides like, unions, again, are just such political organizations at this point, and where we are in America, that I just can’t picture introducing unions into the legislature and not having them create more tension and a more deeply partisan political atmosphere. So like, you’re talking about the committee staff versus an office staff, right. They’re also hired by political parties to run those committees. It changes, depending on who’s in control of the of the legislature at that time. So they’re political, I mean, that’s their function. Their function is to answer to political partisan members of Congress. And so what will it mean to introduce, again, a deeply partisan political organization into that dynamic? Will it change, if the Republicans take control of the House, will the unions not be invited in anymore? I mean, I think there’s just so many questions that are still unanswered about how this would even work.

Jared Serbu: The main rationale that’s been offered for why this needs to happen is really around wages. Congressional staff wages are incredibly low for the market that folks are expected to live in there. Are there other ways to solve that problem besides unionization?

Suzanne Bates: Yeah, absolutely. Well, that’s, I think, really the wages were really terrible. The fact that they had to set a floor at $45,000. And that’s gonna raise a lot of people’s salaries, just tells you that it’s kind of considered a stepping stone right to other jobs that pay better. It ends up being a lot of sort of young staffers, but I mean, I think most people think they deserve a fair wage, right. And unions are one way to get there. That’s what the unions want. But again, are they even going to be able to bargain over wages? That’s not even determined at this point. So are there other ways? Yeah, look, they just got a raise without unions, right? They kind of publicly went out there. They have these Instagram accounts that people have created to air some of their grievances. It sounds like some sexual harassment problems are a real issue in Congress. I think we’ve known that for a long time. There probably needs to be a better way to deal with those. But I think when they take these things to the public, especially this press, there’s so much media around them. And they’re, I think, really interested in what’s going on on the Hill. They have a sympathetic audience. And they’ve clearly been able to put pressure on their bosses and they’ve gotten a raise. And I think that that can happen again. Unions are not the only way to do this.

Jared Serbu: Suzanne Bates is a senior writer and researcher at Americans for fair treatment. You can find his interview at Federal News network.com/federal Drive

Going beyond anecdotes from many feds that say telework improves work productivity and employee satisfaction, Reps. Gerry Connolly (D-Va.) and John Sarbanes (D-Md.) want to look at data to back up those statements.

The Telework Metrics and Cost Savings Act, which the committee passed 23 to 17 along party lines on June 15, would require the Office of Personnel Management to create data collection standards and gather more information on the outcomes of telework expansion. Connolly and Sarbanes hope data on the benefits of telework would encourage more agencies to increase telework opportunities for eligible employees.

Additionally under the bill, federal supervisors would get training on how to best implement telework policies for eligible employees. Agencies would also receive more guidance from OPM on managing telework programs, and would report annually to OPM and Congress about their goals for expanding telework access.

Connolly said at a June 14 committee hearing that the legislation is necessary to better compete with the private sector and to recruit more early-career federal employees.

“The whole purpose of this bill is to expand telework, to encourage telework [and] to build it into the architecture of the federal workplace,” Connolly said. “The benefits that accrue from it will be structurally available to us as we move forward and recruit and retain the workforce generation of the future.”

The bill would also clarify the definition of remote work, which Connolly said was the original intention of the Telework Enhancement Act of 2010.

The definition of telework is working from home some days in a week, but with no guarantee of fully working from home. Separately, remote work is defined as fully working from home with no expectation to come into the office. That usually applies to employees who are working in a different geographical location. The bill would change the definition so remote work fits under the umbrella definition of telework.

Some agencies, like the Social Security Administration and Equal Employment Opportunity Commission, increased in-office work for public-facing employees, and Connolly said he recognizes telework is not possible for all federal workers. Many have to do their jobs in person. The legislation would develop telework policies only for those who are eligible.

Proponents of the bill said it would improve employee retention and productivity at federal agencies. Rep. Carolyn Maloney (D-N.Y.), the committee’s chairwoman, said telework expansion is essential to federal workforce retention.

“If we want the federal government to be a competitive employer that attracts talented workers, then it needs to prioritize some of the workplace flexibilities that employees can find outside of the government. By and large, private companies are embracing hybrid work models and workplace flexibility,” Maloney said.

Clashes in House committee hearing

Republican committee members, though, disagreed with the legislation, saying that Congress should first get more information about the impacts of telework before pushing the bill through to the full House.

One part of the bill they took issue with centered on the requirement for agencies to report their telework plans. In the bill, if an agency leader wants to reduce telework, the agency must report to both Congress and OPM within 30 days.

Rep. Michael Cloud (R-Texas) said the legislation creates barriers for agencies who expand telework, but later choose to turn back to more in-person work. He said the bill would add hurdles that make it more complicated to undo that decision.

Others raised concerns about the necessity to effectively serve the public and deliver on agency missions. Rep. Andy Biggs (R-Ariz.) pointed to multiple agencies that have backlogs and longer wait times that he said result from increased telework during the COVID-19 pandemic. Biggs also introduced legislation in February that would reinstate pre-pandemic telework policies for agencies.

“Veterans Affairs has a backlog of 190,000 cases as of March of this year. IRS [has] almost 10 million unprocessed individual returns. State Department announced yesterday, [it takes] eight to 11 weeks to wait for a passport. We used to be between six and eight [weeks],” Biggs said.

But Connolly said the backlogs have nothing to do with telework or the COVID-19 pandemic, as those have existed much longer than just the past few years.

“To assert that there’s a backlog because of telework is a completely false narrative and a correlation that does not exist, nor was it meant to exist,” Connolly said. “If we want federal agencies to be efficient and productive, telework has got to be part of their mission. Not in a mindless way, not in a way that is not overseen, but it’s got to be pursued.”

Biggs also proposed an amendment to the legislation that would prevent employees who telework at least three days per week from receiving locality pay. He said teleworking employees could work in areas with a lower cost of living, while still getting paid a higher rate based on their office location. Under current OPM guidance, employees must work in the office at least twice per pay period to receive locality pay. The committee voted 16 to 22 against the amendment.

Rep. Yvette Herrell (R-N.M.) also submitted her SHOW UP Act as an amendment to Connolly’s bill. The legislation calls on agencies to provide a detailed plan to Congress about the adverse effects of remote work on agencies’ missions.

“Under the pandemic, we witnessed and unprecedented reliance on telework across the federal government. This reliance on telework has been to the detriment of the nation’s taxpayers who rely on federal agencies,” Herrell said. “This amendment requires federal agencies to immediately return pre-pandemic levels of telework. The amendment would also require a governmentwide review of pandemic-era teleworking policies.”

But Connolly disagreed with the amendment, saying it would go against the purpose of his initial legislation. Instead, the Telework Metrics and Cost Savings Act plans to add more measurable parameters showing the benefits of telework. The committee did not adopt the amendment.

Ultimately, committee members who opposed to the bill said although they do not disagree with allowing telework opportunities as a whole, there is a long way to go before this type of legislation should be enacted.

“None of us oppose telework in general, but we’ve got to have the parameters to make it work and to make it work well. And I see nothing in this bill that indicates that we are anywhere close to being ready to do so properly,” Rep. Jody Hice (R-Ga.) said.

Telework bill draws support from federal groups

Prior to the committee’s passage of the bill, several federal unions and organizations expressed support for the legislation, including the American Federation of Government Employees, the National Federation of Federal Employees and the International Federation of Professional and Technical Engineers.

The National Treasury Employees Union, another proponent of the bill, said the legislation will go beyond employees’ anecdotes to document the successes of telework, set standards for how telework data is collected by agencies and track the cost savings that telework helped achieve.

“Another important provision is that it will provide much-needed supervisor and manager training on how to properly administer a telework program, thereby fixing a problem that NTEU has dealt with for decades in the enforcement of telework provisions in our agency contracts,” NTEU National President Tony Reardon wrote in a statement to Federal News Network.

The Federal Managers Association said the bill would improve managers’ perceptions about telework.

“Managers have often been blamed for impeding implementation of telework among their employees, and this could be remedied with managerial training on how to best supervise and improve the productivity of teleworkers,” FMA National President Craig Carter said in a June 9 press release.

Committee passes legislation on data, census information

Along with the Telework Metrics and Cost Savings Act, the committee voted favorably on a few other bills that would change data collection and work to improve integrity in the U.S. census.

The Honest Census Communications Act, which Rep. Anna Eshoo (D-Calif.) introduced, would prohibit attempts to communicate false information about a census or stop an individual’s participation in the census. The committee passed the bill in a 22 to 16 vote on June 15.

The committee also considered a bill that would expand data collection on LGBTQI+ individuals. The legislation, which Rep. Raúl Grijalva (D-Ariz.) introduced, would require agencies to assess ways to better incorporate questions on sexual orientation, gender identity and variations in sex characteristics into existing government surveys.

Although some committee members opposed the bill, saying it would infringe on privacy rights of individuals, proponents of the bill said the data collection was optional and would expand information on an underserved population. The committee passed the legislation on June 14.

Federal managers across the government need to first encourage a promotion pipeline and then shift mindsets about disabilities. Finally, they need to create encouraging workplaces where people with disabilities feel safe self-identifying.

Almost 32 years after the Americans with Disabilities Act and one year since President Joe Biden’s executive order promoting diversity, equity and inclusion, the overall participation of people with disabilities working within the federal government has increased slightly.

Promotion pipeline

“We don’t have strong numbers in the senior executive service or the upper echelons of the general schedule scale and there continues to need to be real work there to say, you know, ‘If a disabled employee is my best employee, why are they not a manager?’” Rebecca Cokley, disability rights program officer for the Ford Foundation, said at the Partnership for Public Service and the Boston Consulting Group (BCG) event on June 14.

Instead of promotions, the Equal Employment Opportunity Commission found that high percentages of people with disabilities are leaving the public sector involuntarily. On average between 2014 and 2018, people with disabilities were 53% more likely to involuntarily leave the federal government than people without disabilities, according to the 2018 Status of Workers with Disabilities in the Federal Sector.

Actively working to maintain employees with disabilities and to create inclusive environments doesn’t only help workers with disabilities. ADA accessible ramps have proven to be useful for parents with strollers, workers who bike to work and many more people.

“In reality, it is the same thing that we know is important for all employees. It’s good managers that know how to meet the needs of their staff and drive them to perform. It is access to support and services that they need to thrive in the workplace,” Cokley said during the event.

Hillary Wool, principal and disability network lead at BCG, found that mentoring programs, pairing senior staff members with disabilities mentor with junior workers, helped to ensure the retention promotion pipeline at the company.

Shifting mindset and opening discussions

Among other recommendations, experts say how workplace improvements can stem from managers shifting their mindset from the budgetary concerns surrounding disability assistance to the increased productivity workers can provide when equipped with the proper tools.

“Many people within employment spaces still perceive accommodations as charity, not as something that they are legally required to do, and also not as something that is a tool that will ultimately impact the effectiveness and the success of your team,” Cokley said.

The effectiveness of tools can change over time and Cokley says managers are continually working with human resources departments to evolve accommodations as needed. How managers create a culture of acceptance can also change who chooses to identify as having a disability.

In 2018, 9.42% of the 2.7 million federal employees, 259,164 workers, reported having a disability, although more workers could have not reported disabilities due to a lack of understanding or for fear or stigma.

Experts recommend federal agencies maintain an open culture for dialogue about improving accommodations and actively providing resources like movie captions, alternative text for pictures during presentations and creating accessible physical space.

During the event, experts emphasized the importance of shifting the burden of educating non-disabled people about the disabilities will create a more inclusive environment.

“It really is human resources’ job, but yet it always falls to the person with a disability because you’re like, ‘if I don’t do this, my work is going to be impacted, how I’m perceived on my team is going to be impacted,’” Cokley said.

“Even after creating safe environments, not everybody is ready to accept or identify that they have a disability,” Joshua Josa, USAID inclusive education specialist, said. “Although, seeing more managers with disabilities could help create more inclusive, safer workplaces to come forward.”

“We know that there are managers with disabilities, we know their assistant secretaries with disabilities, we know there are cabinet secretaries with disabilities, you cannot expect your staff to self identify if you refuse to one of the number one things that we know leads to successful self self disclosure, is seeing your experience reflected in leadership,” Cokley said.

Hiring practices

In order to continue growing the participation of people with disabilities within the federal workforce, Cokley said placing increased emphasis on the Department of Labor and the Department of Defense’s Workforce Recruitment Program.

The WRP is a recruitment and referral program connecting employers within both sectors to college students and recent graduates with disabilities. The program partners with over 400 universities to place students and recent graduates in summer internships and permanent jobs.

The two agencies created the Workplace Recruitment Program in 1995 and is recognized by the Office of Personnel Management as a model strategy for federal agencies for recruiting and hiring people with disabilities and the pipeline it has built for going into the civilian workforce.

Why now?

Wool says the federal government is at a critical inflection point to implement changes for improving workplace inclusion as government workers are going back into the office.

“In the past year, the labor participation rate of people with disabilities, which has been notoriously very low, has increased by about three percentage points, versus a little bit under 1% for non-disabled individuals. COVID driven workplace flexibility [is] a huge driver there, but we risk moving backwards if organizations aren’t really thoughtful about their back to work policies through an accessibility lens,” Wool said.

Wool’s sentiment echoed Biden’s EO, which said now is the time to “develop a Federal workforce that looks like America where qualified people from every background and walk of life have an equal opportunity to serve our nation.”

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There’s yet another lawsuit challenging the constitutionality of the military’s COVID-19 vaccine mandate. The latest class action targets the Air Force’s religious accommodation process, arguing that process is set up in such a way that getting a religious exemption to the vaccine is almost impossible. The plaintiffs argue that violates the Religious Freedom Restoration Act and the First Amendment. Mike Barry is senior counsel at First Liberty Institute, a nonprofit legal group that focuses on religious liberty issues. He’s one of the attorneys representing the airmen challenging the mandate, and he spoke more to Jared Serbu on the Federal Drive with Tom Temin.

Interview transcript:

Jared Serbu: Mike, thanks for being here. And let’s start by talking a bit about your clients, where they are in the Air Force vaccine exemption process and what led you to file the suit?

Mike Barry: Well, First Liberty Institute represents nine Air Force members who are challenging the Air Force’s enforcement of its vaccine mandate. And our clients are, they’re stationed in various locations, quite a few of them are here in Texas. And they have different ranks, different different job responsibilities in the Air Force, a number of them are actually pilots in the Air Force. And so all of them have requested religious accommodations from the vaccine mandate, which is, of course, something that DoD regulations and even federal law, clearly permit and allow. And, in fact, the Department of Defense allows medical exemptions and administrative exemptions from the vaccine. But although the Air Force has approved hundreds of medical and administrative exemptions, they have only approved a very small handful of religious exemptions and even the ones that they’ve approved by their own admission, they are only for Air Force members who are basically already separating or are already on their way out. So our lawsuit is really predicated on on the argument that this is all a sham, that the Air Force is not following the Constitution. They’re not following federal law. They’re not following their own regulations. And they’re discriminating against people in the military.

Jared Serbu: This case seems remarkably similar to another case that I think First Liberty was also counsel on with a group of Navy SEALs before the very same judge, I believe too. You got a preliminary injunction in that case and a favorable ruling from the Fifth Circuit. Are there major differences here? The story seems pretty similar to what’s going on with these airmen.

Mike Barry: No, really, I mean, this is happening across the entire Department of Defense. The only difference is really is that each branch of the military has their own internal regulations and policies for how they adjudicate these things. And so of course, that means you have to bring different lawsuits on behalf of people, depending on what branch of the military that they’re in. But in terms of the underlying legal issues that are raised, no, they’re exactly the same. The military across the board is discriminating discriminating against people of faith. They are, they’re ignoring the law, they’re ignoring the Constitution. And really, the greatest harm here is not just to our members of the military who are suffering under this, but it’s actually to our nation. Our military, I mean, you can open any news feed that you want. And you’ll see headline after headline talking about the recruiting and retention woes that plague our military right now. We are hemorrhaging people like crazy, and we’re having a really hard time recruiting capable people to join our military. That means that this is quickly becoming a national security concern. We are kicking out people by the thousands. And yet we’re short, we’re saying that we’re having a hard time recruiting people. And in one instance, I saw one of the head people for recruiting in the military said, “We’re having a really hard time identifying, basically people who are eligible to serve in the military. And one of the reasons for that is if they if they’re between the ages of 17 and 23, and they’re not vaccinated, we’re not even willing to talk to them.” And so they’re basically closing off an entire segment of society in a discriminatory manner. Because of those people’s religious beliefs and religious convictions. I mean, this is quickly becoming a national security issue for our nation.

Jared Serbu: I want to go back to what you said earlier about the process being a sham, because I want to try and draw how much of an issue that actually is, in these cases. In a hypothetical alternate universe where it were the Navy and the Air Force, the rest of the services had an exemption process or a waiver process that did look more credible to you and to the court, do you lose these cases?

Mike Barry: No, I think what happens is they become much smaller cases, right? They become the exception and not the norm. I think that a process that is not a sham looks a little bit something like the military regardless of what branch we’re talking about, takes an honest look and says okay, what is this person’s job or their function? And is there somewhere else we can assign them where maybe they’re at less risk of of COVID transmission or they start looking at the data, right, the actual CDC data and the COVID day they start look kicking it around and saying, You know what? Starbucks, for example, doesn’t have a vaccine requirement. And yet people who work and – I mean, you’re coming in very close proximity with thousands of people per day, hundreds of people per hour. And at least in the Starbucks is that I’ve been in recently where they’ve been packed in like sardines. And yet they say, you know what, we now believe that it’s okay, for our employees to not be vaccinated, it’s okay for our customers to not be vaccinated. And I haven’t heard of a single Starbucks shutting down. Same thing on airplanes, right? Commercial airlines has said, you know what, we’re gonna lift the mask mandate. Of course, that came because of a federal judge’s ruling. But nevertheless, how many, I fly almost on a weekly basis for my job. And I have yet to hear of a single flight being canceled because there was a COVID outbreak at 30,000 feet. So everywhere else in society has been able to figure this out, but our military hasn’t because they take such an iron fisted, draconian approach to everything. And to say, basically, no, you will do this because we said so and if you don’t, we’re gonna kick you out. And then if you come back and you say, oh, no, but my exemption is a medical exemption [see Contraindications and Precautions] not a religious exemption, then the military says, Oh, well, in that case, we welcome you with open arms. And that is textbook discrimination, right? When you treat people who have a medical exemption for more favorably than you treat somebody who has a religious exemption, that is textbook discrimination, and that’s what’s happening. And that’s why this is a sham.Jared Serbu: The Air Force case is a putative class action. If the court certifies the class does the class become all unvaccinated airmen or everyone who’s been denied a religious exemption? How large is the class?

Mike Barry: It would be everyone who is requested and been denied a religious accommodation from the vaccine mandates, specifically the COVID vaccine mandate. So that, right now that number is several thousand. I know, off the top of my head, the number in the Navy is somewhere near 4,100. It’s just under 4,100. The Air Force number is probably in the same ballpark.

Jared Serbu: Got it. I think one of the military’s concerns is what’s the limiting principle here? Because how do you avoid getting to the point where anyone can deny or refuse any lawful order by claiming that they have a sincerely held religious belief that would be encumbered by it?

Mike Barry: Well, I mean, that’s the beauty of the way that the law works, right? The Religious Freedom Restoration Act (RFRA), it doesn’t, the sincerity issue is what everybody seems to be concerned with, right? Well, what if somebody’s not really sincere? And what if this is political ideology masquerading as as religious piety? Right? Well, the good news is the law is set up so that the government actually can win those cases, when all they have to do is demonstrate that they have a compelling interest. And the way that they are accomplishing their compelling interest is the least restrictive means on the person’s religious beliefs. So if you can find a way to accommodate somebody’s religious beliefs, in a less burdensome way right, a way that’s less obstructive or cumbersome on their religious exercise, then if the person is really sincere in their religious beliefs, they’ll usually accept that. They’ll accept that alternative and say, okay, you know, I’m willing to do that instead. So for example, in a different context, somebody who says that they’re a Sabbath observer, and they cannot work on the Sabbath, but that they’re willing to trade ships with somebody, most of the cases I’ve seen, they’re actually willing to take, what most people consider be a less favorable shift. Right? So if they work Sunday afternoon, or if they’re scheduled to work a particular Sunday afternoon, they say, “Well, I’m a Sabbath observer on Sundays. Hey you have the Friday night shift, right? I’m happy to take that one from you. If you want to swap with me,” and they do that through the employer, or their employer offers that. They’re usually willing to accept that and say, look, yeah, I’m happy to. Night shifts aren’t popular, especially on Friday night, and things like that. But I’m willing to do that. It’s really the same thing in the military context with this vaccine, where they’re saying, Look, teleworking or, doing a lot of these other measures, right, social distancing, masking, testing, whatever the case might be. They’re not pleasant. They’re burdensome, but the person says, “But you know what, at the end of the day, I’m not have to inject something in my body that violates my religious beliefs. I’m willing to go through that.” And usually when somebody is willing to go through those measures, that demonstrates a degree of sincerity. The problem here is that the government is simply unwilling to offer any compromises. They’re basically saying, “Nope, the vaccine is the only way that we’re going to allow you to continue to remain in the service.” And one of the things I forgot to mention was the whole concept of natural immunity. Why is the DoD ignoring natural immunity when the CDC and other epidemiologists and medical experts have all generally agreed natural immunity is a real thing. And in some cases, according to some reports, it’s even more durable than the vaccine and you don’t have to get boosters and things like that. But the DoD is just saying “Nope, we won’t even recognize that we won’t even consider it,” even though they consider natural immunity for other communicable diseases and infections and things like that.

Jared Serbu: Last thing, there’s a lot of these vaccine cases, even just military vaccine cases floating around in various district courts and circuits the moment.

Mike Barry: I think there’s almost 30 now.

Jared Serbu: Yeah, there’s a ton. Assuming, maybe I’m assuming too much. But if they eventually get consolidated in the Supreme Court grants cert [writs of certiorari] on something that considers the issue more broadly, would you expect that we’ll get a case or a ruling that goes beyond the narrow issue of vaccines and gives the military some guidance as to how RFRA and broader religious accommodation issues apply to the military?

Mike Barry: Probably not at the Supreme Court level. The Supreme Court is historically, they only address the legal issues that are brought before them, right. They don’t offer what are, in the legal speak, we call advisory opinions. In other words, it’s usually ill-advised to take an opinion on one subject or one issue, and then try to extrapolate and say and that and say, Well, that should apply across the board to all issues. So that’s usually unwise, and so practitioners who are in front of the Supreme Court frequently like us, we usually know not to do that. So I think that if one of these cases does end up in front of the Supreme Court, it will probably be addressed just on the narrow vaccine issue. And now people will be able to take the analysis Supreme Court used and say, “Okay, the way that they analyzed this issue, that might give us some indication of how they would analyze other issues,” right. But what we can’t do is say, well, because they ruled this way, in this case, this is how they’re going to rule in all cases.

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• Federal workers who get injured on the job may soon have better access to workers’ compensation. The House passes legislation that would expand federal employees’ choice of medical providers. The act would cover the cost of medical care for injured federal workers who seek treatment from physician assistants and nurse practitioners. The current law limits reimbursable medical fees just to physicians. The bipartisan bill cleared the House in a vote of 325-83.
• The Senate reversed a 16-year-old law that made it harder for contractors to respond to disasters. The Repeal of Obsolete DHS Contracting Requirements Act rescinded a section of the Post-Katrina Emergency Management Reform Act of 2006. This provision required the Department of Homeland Security to prohibit the use of subcontracts for more than 65% of the cost of certain emergency response and recovery contracts. The section conflicted with a provision of the 2009 National Defense Authorization Act that imposed a governmentwide limitation to prevent excessive subcontracting. Sens. Gary Peters (D-Mich.) and Rob Portman (R-Ohio), who co-sponsored the bill, said the provision caused confusion for FEMA officials and contractors, and weakened disaster response efforts.

• Two senators are urging President Joe Biden to update what they say is an outdated government classification system. Sens. Ron Wyden (D-Ore.) and Jerry Moran (R-Kan.) said there is an urgent need to modernize rules governing classification and declassification. They are urging Biden to either amend or replace the current executive order on classified national security information. Earlier this year, Director of National Intelligence Avril Haines told lawmakers that overclassification is a threat to U.S. national security.

• The agency that manages the Thrift Savings Plan has a new team of leaders. The Senate confirmed four members to the Federal Retirement Thrift Investment Board. Dana Bilyeu and Michael Gerber are reappointments, while Leona Bridges and Stacie Olivares are new board members. The confirmation comes after six Republican senators placed a hold on the nominees last month. The lawmakers raised concerns about Chinese investments through the TSP’s mutual fund window, but after the members said they would not let TSP funds invest in China, the senators lifted the hold.

• Federal employees have a chance to help improve the Freedom of Information Act process. The FOIA Federal Advisory Committee is looking for new members after the current group finished its fourth term. The committee is made up of 20 members, divided evenly among the public and private sectors. Members serve two-year terms and attend monthly meetings to discuss possible improvements to the FOIA process. Applications for the 2022 to 2024 committee are due on June 30. The committee is a part of the Office of Government Information Services.

• The National Archives’ FOIA Federal Advisory Committee offered 21 ways departments across the government can improve the Freedom of Information Act process. The committee’s recommendations include advising agencies to post information beyond what is required by law on their FOIA websites and to proactively update an online searchable FOIA log. Their report also includes possible ideas for expanding documents included in FOIA to the judicial branch.

• The Postal Service’s regulator finds USPS’ plans to upgrade some its package services might lead to inefficiencies. The Postal Service’s proposal would upgrade service standards for its retail ground and Parcel Select Ground services to a 2-to-5 day delivery standard. USPS currently allows up to 8 days to deliver under its standard. But the Postal Regulatory Commission in a nonbinding opinion finds the plan may lead to more manual processing of packages and a higher demand for staff at facilities. The PRC says this could lead to disruptions in processing and transportation as well as cost increases. The commission’s raised concerns about USPS slowing some first-class mail and its first-class package service.

• A key group behind the Cybersecurity Maturity Model Certification program is rebranding. The CMMC Accreditation Body is now the Cyber AB. The independent group is responsible for accrediting organizations and individuals to conduct CMMC assessments of defense contractors. The Cyber AB said the new name is less phonetically challenging and helps differentiate it from the internal Defense Department program office. The Pentagon is still moving forward with the cyber certification program, but is not expecting to publish final rules requiring CMMC assessments until next year.

• Marine Corps Lt. Gen. Michael Langley is nominated as the next chief of U.S. Africa Command. In that position he will be responsible for operations in the Africa area of responsibility. Langley is currently the head of U.S. Marine Corps Forces Command. He will take over for Army Gen. Stephen Townsend.

• The Army laid out its digital transformation and budget priorities for 2023. It’s asking for almost $17 billion for its IT and cybersecurity budget in fiscal 2023. About $2 billion of that is for cybersecurity operations. Raj Iyer, the Army’s CIO, said 2023 is a year of inflection for their digital transformation journey. “Our technologies, our networks, how we get to data centricity, how we address cybersecurity, all of these things need to be addressed from that future threat perspective.” Iyer said investments in cloud, business system modernization and the unified network top his priority list. (Federal News Network)

• Women veterans now have more options to get screened for breast cancer. Biden signed two bills into law that will expand veterans’ access to mammograms. One bill expands the eligibility of veterans who were exposed to toxic chemicals to get the test. The other bill creates a plan to improve access to breast imaging services in rural areas where the Department of Veterans Affairs does not offer in-house tests. Female veterans are three times more likely to develop invasive breast cancer and it is currently the leading cancer affecting women who served in the military.

• A bill to help VA staff up in underserved areas is introduced in the House. The VA Workforce Investment and Expansion Act would require the VA to create a national VA Rural Recruitment and Hiring Plan, and allow the agency to waive pay caps for certain positions to compete with the private sector. The bill would also expanding hiring opportunities for housekeeping aides, which is one of the most understaffed and hardest to hire positions across the VA.

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A section in the 2023 Defense Department budget request would change how DoD manages its civilian workforce. The American Federation of Government Employees thinks it could lead to wholesale reductions in the civilian ranks. For what’s going on, the Federal Drive with Tom Temin turned to AFGE’s Defense Department legislative representative John Anderson.

Interview transcript: 

John Anderson: There is a massive contradiction in the president’s budget between, and I found it very positive when I saw the sections about strengthening the federal government workforce, and improving the hiring process. Then buried in the technical appendices is a reversion back to some very failed practices that occurred over the past decade where the workforces funding levels were disrupted through the operation of personnel caps. Now, the way a personnel cap operates is that funding that has been set aside and budgeted for the civilian workforce, once a civilian gets promoted, retires, leaves for another job, that manager who is responsible for the function has to worry about keeping that position, because it becomes ripe for the takings by the controller. And the controller doesn’t really care that much about total force management or the civilian workforce hiring. That’s the responsibility of the undersecretary of personnel readiness to be the champion for that. And as you have an incumbent as a political appointee, performing the duties of undersecretary of Defense for Personnel and Readiness, and they either have been delays in their appointments, or have not really gotten up to speed and being a vigorous advocate of this function. The Comptroller, given their normal practices will just say, this is an easy way for me to harvest some dollars. And so they will take the money, if it’s a vacant position, if it’s a vacant position, they don’t have to do a rest. So it completely eludes any kind of congressional oversight. And then they wonder why this is the front ends of problems with the hiring process that most people don’t really get to. They just look at the back end, once a physician is established, and they don’t look at the front end of when a person leaves a position and a vacancies in place. And then it’s a free-for-all to protect that position.

Tom Temin: All right, so you have written to the chair of the House Appropriations Committee, defense subcommittee, and to Sen. [Jon] Tester, who is chairman of the Senate Appropriations Committee Defense Subcommittee, the two big defense subcommittee folks, and said, you’re citing section 129 of title 10, which is the overall kind of statute for civilian employees in the Defense Department. And you said that the provision in the request for next year eviscerates that. So tell us what 129 does, and how this request from the Biden administration eviscerates it?

John Anderson: Okay, 129 specifically mandates that the civilian workforce has to be solely managed, based upon those full force management principles in a separate section 129-A, which is separate from 129. And it is to be managed solely based on the full force management principles, the workload that’s to be performed and the funding provided by Congress. Now, the total force management policies that are supposed to be followed, they are the responsibility of the undersecretary of Defense for Personnel and Readiness to be the champion of those and advocate for them. And those policies requires the department to look at the civilian workforce, and the functions they perform holistically. Together with the capabilities provided by the active, the reserves component, military, and the contractor workforce. And to look at things from the standpoint of costs and risks, and the elements of risks deal with readiness, lethality, stress on the military force, and operational effectiveness. Now, the thing that really was alarming was not just this technical change, but the performance of the department. Very various budget hearings and posture hearings, before the House Armed Services Committee, Senate Armed Services Committee, and in particular, the Senate Appropriations Committee and the House Appropriations Committee, subcommittees of defence. And in particular, in a the hearing before the House Appropriations Committee Subcommittee on Defense, when Ranking Member [Ken] Calvert, did his perennial, he has done for the past 15 years saying, “Let’s reduce the civilian workforce by some arbitrary number, in this case, since military end strength is going down, you should have proportionately reduced the civilian workforce.” And he had that interview in the record without objection. And there was no vigorous rebuttal, consistent with the department’s previous budget, posture briefings and everything else. Instead, they met it with, “Oh, we are always ready to become more efficient.” Now, when you look at past Government Accountability Office audits of the department when they have tried to become more efficient, by cutting the civilian workforce, they found that essentially, the department just shifted the requirement done by civilians to higher-cost contractors, or to military to the detriment of readiness and [the force].

Tom Temin: We’re speaking with John Anderson, he’s DoD’s legislative representative at the American Federation of Government Employees. So the key sentence here is during the current fiscal year, which would be 2023. And this is from the request, the civilian personnel of the Department of Defense may not be managed solely on the basis of any constraint or limitation in terms of man years, end strength, et cetera, et cetera. So you’re interpreting this to be a gambit to just make wholesale cuts to the civilian workforce?

John Anderson: Yes, because of the injured position of the word “solely” suggests that well, they primarily may be managed based on that. And in fact, that provision, before it was changed by the appropriators to conform to the title 10 section 129 and 129-A, in fact, was interpreted that way. It was interpreted to say, we can manage the caps and in fact, that’s the way we do it. And as a result, you had massive levels of basically the department coming in and saying we’re going to spend X amount on the civilian workforce, and then they would not spend that they were shifted through contractors, essentially.

Tom Temin: So the question now is, have you gotten any response from the appropriators here? I mean, this was section 8008, in the appropriations request, out of probably 12,000. And I can guarantee no member of Congress can name all 12,000. So were they aware of it? Do they agree with you? What’s the reaction been so far since this letter?

John Anderson: Well, I’d say on the Democratic side, the reaction of the appropriators has been to thank me for pointing out that disconnect. There has been some follow up, I understand, with the department to try and find out just exactly where this came from. I have a sense that they haven’t been answered yet. And my instincts are the department is probably trying to figure out how it got in there.

Tom Temin: Right, because it did come from a Democratic administration, too.

John Anderson: Yeah. Now my hypothesis is, is that in the bureaucratic coordination process, this is a highly technical provision, it’s possible, this is my speculation, it’s possible, it came from the comptroller. And as the P&R – the personnel and readiness people, because that function was weakened in the prior administration, and the current incumbent has not really from my perspective, really vigorously taken on that function – that they missteps. That’s the benign interpretation of this. Now, a more nefarious interpretation is this is deliberate. I doubt that, I think it was probably a bureaucratic glitch. I’d like to give him the benefit of that doubt. But it also reflects the fact that the performance of the department during budget and posture hearings in this area has not been very good. And they did not prepare their senior leaders when Calvert gave him something that would be very easy to answer if they just read their own documentation in the past that they’ve done on the civilian workforce to answer him and say, “Actually, workload is going up, operational demand is going up. The national defense strategy does not say that military end strength should go down. The only reason it’s going down is we’re not able in this current job market, to get people to agree to enlist at the level of quality that we would like to have. Now the people that were closest to getting that direction were the Army, so I applaud the way they performed in the hearings, but in general, the department overall has not really adequately rebutted Ranking Member Calvert. If they just read their own documentation, it was easy for them to do so.

Tom Temin: So you’re confident this will come out?

John Anderson: I certainly hope so. And I’d say based on, and I’ve also had responses from some Republicans too and I commend Sen. [Thom] Tillis on the Senate Armed Services Committee side, because he seems to get when the undersecretary of Personnel and Readiness testified before the Personnel Subcommittee of the Senate Armed Services Committee and didn’t seem to be aware of his total force management responsibilities very well and had to be kind of reminded that he has those responsibilities, I think that both the Democratic side of the Senate Armed Services Committee and Sen. Tillis in particular, were very good on this issue of military end strength reductions. He understood that it had nothing to do with – in fact, he was concerned. Is this driven by some budgetary restraints from the comptroller or is this based on the national defense strategy? He gets it and I’m very, very pleased with the way he follows up.

The Transportation Security Administration is hiring a chief diversity, equity and inclusion officer to spearhead the work of an inclusion action committee, as some lawmakers express frustration with lack of diversity among the agency’s senior ranks.

TSA Administrator David Pekoske says the chief DEI officer will be a member of the senior executive service and join the agency within the next month. The agency’s Inclusion Action Committee recommended TSA create the new position.

Pekoske said the official will be charged with acting on other recommendations in the committee’s December 2021 report. TSA created the action committee in the wake of George Floyd’s murder in 2020.

“They put forth some excellent recommendations as to how we can address this from a very strategic level within the agency,” Pekoske said during a May 26 House Homeland Security transportation and maritime subcommittee hearing.

While the majority, about 55%, of TSA’s approximately 60,000 employees are persons of color, 53 out of 66 Federal Security Directors are white and 54 are men, according to Subcommittee Chairwoman Bonnie Watson Coleman (D-N.J.).

“I’m frustrated by the lack of TSA’s progress in diversifying its senior ranks,” she said.

Pekoske acknowledged that TSA’s senior management should reflect the diversity of TSA’s entry-level workforce. He committed to staying on top of diversity metrics, in particular at the supervisory and management levels.

“When you look at just the senior level, you really have to look down a couple to see how much diversity do you have in the in the middle management that will become your senior leaders in a few years,” Pekoske said. “And so I think it needs to be a very holistic approach across the agency.”

D&I ‘understaffed and under resourced’

Beyond the establishment of the chief DEI officer, the action committee’s 2021 report lays out multiple recommendations aimed at strengthening and sustaining TSA’s “inclusive culture,” and removing barriers to a diverse leadership.

The report urges adequate funding for TSA’s new Diversity and Inclusion Division, noting that the agency’s existing D&I program is “severely understaffed and under resourced.” That has led to “critical issues” in managing, measuring, supporting and sustaining diversity and inclusion initiatives, according to the report.

The report also identifies inconsistent disciplinary and attendance policies, respectively, as barriers to diverse leadership.

It additionally urges TSA to overhaul its promotion policies, including the adoption of a blind review process combined with the requirement to use a diverse interview panel.

“The IAC received consistent sentiment from colleagues at all levels within the agency that highlights the inconsistencies with the promotion system that has led many to believe, ‘it’s not what you know, but who you know,’” the report states. “This recommendation focuses on the application of several new requirements to reinforce a more transparent process.”

The report also recommends requiring “inclusive diversity leadership training” for all supervisory K band positions up through transportation security executive service roles. Additionally, it recommends diversity training for selecting officials “to mitigate biases and develop a tool/checklist guiding selecting officials through the selection process.”

During last week’s hearing, Pekoske said the December report is not the last word from the Inclusion Action Committee.

“That Inclusion Action Committee is not just a one-shot committee,” he said. “This is going to be a continuing committee within the agency, we just solicited for a new slate of members to come in. So we’ll change out the members on a rotating basis over the course of the years.”

TSA pay equity push

During the hearing, Pekoske also reiterated that achieving pay equity for TSA employees is his top priority.

The House passed the Rights for the TSA Workforce Act earlier this month. The legislation would bring TSA employees under the same personnel system as other federal employees under Title 5 of U.S. Code, including the General Schedule pay grade.

But the bill passed with virtually no Republican support, and it faces an uncertain future in the Senate. Lawmakers also have to separately approve the funding to grant TSA employees pay raises in fiscal 2023.

Pekoske said 81% of transportation security officers make less than equivalent employees at other agencies who are paid under the General Schedule. Meanwhile, 51% of the agency’s non-TSO workforce is paid less than their counterparts at other agencies.

The Biden administration is proposing to fund the pay increase by ending the diversion of passenger security fees to pay off the federal deficit. Instead, TSA would be able to keep an additional $1.5 billion in fees in FY-23

Pekoske said TSA delivered the legislative proposal for ending the diversion of the fees to Congress on May 2.

He noted the imperative to ensure TSA’s workforce stays stable and grows as travel is projected to return to pre-pandemic levels starting this summer.

“If these long standing pay challenges are not fully addressed in fiscal year ’23, I am concerned that it would lead to even higher rates of attrition and significantly undercut our recruitment efforts,” he said. “We can’t let this happen because this is a time where we need to grow.”