Wednesday, April 22, 2015

New Guidance for Federal Employees – Blogger Beware!

There is much value in the federal government’s use of social media – for example, we follow the Department of the Interior’s Instagram account that features gorgeous visuals of the nation’s parks and provides interesting snippets of these close-by-yet-foreign places. Yet, there is considerable confusion over precisely when a federal employee’s online activity may cross over to misconduct. Many agencies have inundated the United States Office of Government Ethics (OGE) regarding this exact concern, and on April 9, 2015, the OGE issued new Guidance for executive branch employees’ personal use of social media. For the most part, the Guidance offers commonsense advice, and includes a list of factors to consider when determining that an expressed opinion constitutes misconduct:

  1. Whether the employee states that he or she is acting on behalf of the government;
  2. Whether the employee refers to his or her connection to the government as support for the employee’s statements;
  3. Whether the employee prominently features his or her agency’s name, seal, uniform or similar items on the employee’s social media account or in connection with specific social media activities;
  4. Whether the employee refers to his or her government employment, title, or position in areas other than those designated for biographical information;
  5. Whether the employee holds a highly visible position in the Government, such as a senior or political position, or is authorized to speak for the Government as part of the employee’s official duties;
  6. Whether other circumstances would lead a reasonable person to conclude that the government sanctions or endorses the employees’ social media activities; or
  7. Whether other circumstances would lead a reasonable person to conclude that the government does not sanction or endorse the employees’ social media activities.

Thus, while a federal employee may have personal social media accounts, she must take care to keep her federal identity at a distance. Although the Department of the Interior may post about its official activities, an Interior employee may not post her personal opinions on her own social media platforms in a way that creates an “impermissible appearance of government sanction or endorsement.”

The OGE recommends that agencies adopt their own social media policies if they have not already done so. In the meantime, they reassure the federal workplace that more guidance will be forthcoming. One subject matter worth addressing is how agencies’ social media policies would impact a federal whistleblower’s ability to make disclosures on social media. Future guidance would need to make clear that such agency regulations cannot be used to circumvent a whistleblower’s right to make protected disclosures – as the Supreme Court held in Department of Homeland Security v. MacLean, 135 S. Ct. 913, 190 L. Ed. 2d 771 (2015), the exemption from the Whistleblower Protection Act for disclosures “specifically prohibited by law” does not apply to disclosures prohibited solely by agency regulations.

Another subject matter the OGE ought to address is how the Fair Labor Relations Act is implicated by agencies’ social media policies. One can easily imagine a scenario where a worker complains about a supervisor’s unfair treatment of a co-worker – perhaps in a series of public tweets. The OGE will need to make clear that whatever policies an agency decides to adopt will need to respect the worker’s right to engage in protected labor practices.

Of course, as the OGE recognizes, this is only the tip of the iceberg, and social media is evolving at a faster rate than policies and laws. Should you find yourself in murky waters, please give us a call.

This blog was written by Nina Ren.

Wednesday, April 15, 2015

Returning “Powers” to Railroad Workers

In a previous blog post, we wrote about the Department of Labor’s Administrative Review Board’s (“Board”) unusual oral argument in Powers v. Union Pacific. That argument was on January 14, 2015. On March 20, 2015, the Board ruled in favor of Robert Powers in a 3-2 decision.

Under the 2009 amendments to the Federal Rail Safety Act of 1982 (“FRSA”), whistleblowers must first show by a preponderance of the evidence that their protected activities were a “contributing factor” to the action taken against them. However, even when a whistleblower can make this showing, the employer can still defeat the whistleblower’s claim if it shows by “clear and convincing” evidence that it would have taken the same action even if the whistleblower had engaged in no protected activity. Congress has used this modern two-tiered standard for proving causation in the Whistleblower Protection Act (for federal employees) and in more than a dozen private sector whistleblower laws enacted in the last two decades.

The benefit of this standard to whistleblowers is clear: for tier 1 (the contributing factor tier), the employee need only show that her disclosures contributed to the employer’s decision to take the action; but in tier 2 (the “even if” tier), the employer must meet the much higher burden of proving that it would have taken the same action even in the absence of the disclosures. Not surprisingly, employers have been trying to find a creative way out of this standard of proof.

In Fordham, the employer sought to merge the two-tiered standard with the familiar McDonnell Douglas paradigm used in discrimination cases where there is no direct evidence: the employee creates an inference of discrimination from circumstantial evidence, and the employer can negate that inference merely by articulating a “legitimate non-discriminatory reason” for its action. The employer doesn’t have to prove anything; it need only state an alternative explanation. To prevail, the employee must then prove by preponderant evidence that the employer’s explanation isn’t credible. Note that at all times, the burden of proof rests with the employee.

In Fordham, the Board rejected the employer’s efforts, and it reaffirmed that reasoning in Powers. Briefly, the Board reiterated that the two-stage analysis mandated by the FRSA required the strict separation of complainant’s evidence and employer’s evidence when determining causation. In essence, the Board cautioned that an employer will not be allowed to water down its “clear and convincing” burden of proof by arguing that it had a legitimate reason the employee’s contributing factor stage. In practice, this means that the employer’s evidence that “it would have taken the same personnel action regardless” will not be heard until the employee has met his or her initial burden. This analysis has widespread implications. The FRSA amendment’s burdens of proof were adopted from the proof provisions of the Whistleblower Protection Act of 1989 (“WPA”). In fact, much of the Board’s analysis relied upon the logic and legislative history behind the WPA, and more than a dozen federal laws use this modern causation standard.

Further, the Board explained that the “contributing factor” standard means just what the words says it means – that the protected activity contributed to the adverse action. Other reasons may have played a role in the employer’s ultimate decision, and perhaps even a larger role than the complainant’s whistleblowing. Nonetheless, the employer must answer for its actions when unlawful reprisal contributed in any way to its decision. Congress has always intended the contributory factor to be an easy burden for plaintiffs – an intent that is rooted in frustration with the difficulties whistleblowers continue to have with employers and adjudicators. In this case, the Board was mindful of the “history of retaliation against injured railway employees and the under-reporting of injuries by the nation’s railroad companies.”

Going forward, private sector whistleblowers should have an easier time proving their cases to the Department of Labor. Employers will now face the difficult burden that Congress intended – whenever unlawful retaliation contributed in any way to an adverse action against a whistleblower, the employer can prevail only if it can prove, by clear and convincing evidence, that it would have taken the same action notwithstanding the whistleblower’s protected activity.

Read the Powers decision here.

By Nina Ren