Select Training Seminar Below

Registration Rates
4 Days:        $1,880
3 Days:        $1,470
2 Days:        $1070
1 Day:          $640

Day 1 - Monday, February 22, 2021:

Post-ADAAA: Who Is and Isn’t Covered Under the Amendments Act:

  • The ADA Amendments Act of 2009 greatly expanded the definition of who is considered an individual with a disability. The week will kick-off with covering the revised regulations that define who is covered, as well as a discussion as to who is not covered by the Rehabilitation Act, as amended. This session will also discuss the key definitions of “qualified individual with a disability” and discuss how that definition is met.
Proper Procedures for Responding to Requests for Accommodation:

  • This session will walk attendees through how to appropriately respond to requests for reasonable accommodation, including a discussion of how an employee can place an agency on notice of a need for accommodation, best practices in determining whether an employee is a qualified individual with a disability, how to promptly respond to avoid claims that a delay in providing accommodation resulted in a denial of accommodation, and when additional information can be requested. The session will also cover how to handle needs for accommodation raised by individuals other than the employee, including supervisors, family members, attorneys and union representatives.
Regarded As, Record Of, and Association With Individuals With Disabilities:

  • These lesser-utilized case theories provide standing to employees who are regarded as disabled by their employer, regardless of whether they actually are, who have a record of a disability, or who face discrimination because of their association with an individual with a disability. This portion will cover these case theories and how they can be successfully asserted.
Other Theories of Disability Discrimination: Harassment, Disparate Treatment, Disparate Impact, Retaliation for Requesting Reasonable Accommodation:

  • Although claims of failure to provide reasonable accommodation are the most common type of disability claim, there are other theories on which discrimination can be asserted. This segment will discuss the burdens of proof for employees to raise claims of harassment, disparate treatment, disparate impact, as well as retaliation where the protected activity was requesting reasonable accommodation.

Day 2 - Tuesday, February 23, 2021:

How to Conduct an Accurate Assessment of Essential Functions in Order to Respond to a Reasonable Accommodation Request:

  • Employers run into issues when they only rely on the position description or a one-sided view of what the actual job duties of an employee entail. This segment will discuss best practices for determining, and documenting, what these essential functions are, as well as what would be considered marginal job functions, in order to respond to a request for accommodation.

Thinking Outside the Box: Creative Approaches to Responding to Reasonable Accommodation Requests:

  • Employees are entitled to effective accommodations, not the accommodations of choice. Learn how to creatively approach requests for accommodations such that both sides achieve their goals, including some low-cost accommodations you may not have thought of.

Accommodating Hidden Versus Obvious Disabilities:

  • Some disabilities are obvious and the accompanying accommodations will also be obvious (for example, an employee in a wheelchair who requires a ramp to obtain access to the workplace). These types of accommodations require less in terms of medical documentation and analysis and employers should ensure not to overstep in terms of requesting documentation. However, some disabilities are hidden, or not as obvious, and the accompanying accommodations may be less obvious. This session will discuss best approaches to responding to these types of need for accommodations.

Telework As A Reasonable Accommodation:

  • Telework, whether full-time, part-time, or situational, continues to be requested with great frequency by employees with disabilities. Learn how to best respond to these requests, when telework can work as an accommodation, considering trial periods to gauge performance, and reframing how essential job functions can be performed virtually.

Reassignment: The Accommodation of Last Resort:

  • Agencies must consider reassignment to another vacant, funded position if the employee cannot be accommodated in his or her position of record. Attendees will learn what obligations an agency has to search for other positions, how the applicable geographical area is defined, and how to document these attempts and communicate with the employee about these attempts.

Establishing An Undue Hardship Defense:

  • Agencies cannot simply assert that it would be an undue hardship to provide an employee with accommodation for a disability. Rather, there must be clearly documented analysis as to how the accommodation would impact agency operations. This session will cover the necessary elements to establish a claim that it would be an undue hardship to provide the requested accommodation that is defensible if the employee initiates an EEO complaint.

The Impact of COVID-19 On Employees With Disabilities and Reasonable Accommodation Requests:

  • This session will focus on the latest EEOC guidance on COVID-19 and the federal workplace, including how direct threat is assessed in light of a declared pandemic, how employers must provide reasonable accommodation to those remaining in or returning to the workplace and to those employees whose disabilities may require additional accommodations to allow them to work from home, and what medical information must be kept confidential. The session will also include discussion as to how the landscape of arguing essential functions of an employee’s position and how these essential functions can and cannot be performed remotely has changed as a result of the pandemic.

Day 3 - Wednesday, February 24, 2021:

When Employers Can (And When They Need To) Request Medical Documentation:

  • Not every request for accommodation requires medical documentation in order to respond, and agencies often run into issues by focusing on getting just one more letter from a medical care provider, when the agency has what it needs to respond on file. This session will cover when, and when not, to request medical documentation and how best to limit requests to avoid liability.

Requests for Medical Information at Different Stages of Employment:

  • The types of medical information an employer can lawfully request and receive differs depending on the stage of employment: application-stage, conditional offer of employment, post-employment. This session will explain these different stages and how agencies can avoid making unlawful medical inquiries.

Confidentiality of Medical Information: What You Can and Can’t Reveal:

  • A common pitfall agencies run into is improperly disclosing, whether with mal intent or not, information about an employee’s medical condition. This segment will discuss who has a need to know information, and best practices for communicating limitations while not disclosing underlying medical conditions.

Best Practices for Storing Medical Information:

  • This section will cover how medical documentation must be kept in a specific manner and failure to do so can lead to monetary remedies to the employee, regardless of whether he or she has a disability under the Rehabilitation Act.

Appropriately Handling Employees Who Pose Direct Threats in the Workplace:

  • This session will cover how to lawfully address concerns that an employee poses direct threats in the workplace, including ensuring that any medical inquiries are job-related and consistent with business necessity.

Day 4 - Thursday, February 25, 2021:

When An Employee Cannot Be Accommodated:

  • Sometimes employees cannot perform the essential functions of their positions, even with accommodation, and the agency must consider removal from the position where reassignment is not an option. This segment will cover best practices for agencies in taking such actions such that they can be defended if challenged by the employee, and how to approach these situations with appropriate compassion.

Managing Performance and Conduct Issues with Employees with Disabilities:

  • Managers often struggle with how to appropriately address performance and/or conduct issues with employees who have requested reasonable accommodation, or may even require accommodation that they have not requested. This session will discuss how best to supervise these employees, while not giving rise to a claim of retaliation.

Remedies Available to Successful Complainants Under Disability Claims:

  • This session will discuss the remedies available to complainants who prevail on claims of disability discrimination, key information for any practitioner who assists agencies in responding to claims, or defending against them, to know. Discussion of how best to differentiate between claims that an agency caused a medical condition, versus created an exacerbation of a medical condition, will be included.

How to Establish a Good Faith Defense to a Claim of Failure to Accommodate:

  • Employers can avoid being liable for claims of compensatory damages even if the employee establishes that the agency did not provide an accommodation, if the employer can demonstrate that it attempted in good faith to provide an accommodation. This session will cover what is needed in order to properly document and establish such a defense, including an overview of the applicable case law.

Latest Case Law on Disability Discrimination Cases:

  • This segment will cover the latest decisions from the EEOC’s Office of Federal Operations and relevant Court of Appeals and District Court decisions that shape the developments in disability law.

Key Considerations in Preparing to Litigate and Litigation Claims of Disability Discrimination:

  • This session will cover best practices in preparing to litigate and litigating claims that an agency failed to provide reasonable accommodation, including key information to request in discovery, including appropriate requests for medical records and claims for damages, how to conduct a deposition and question witnesses where disabilities are involved, and considering whether expert testimony is required.

*Each day includes a one-hour on-your-own lunch break.

Registration Rates
3 Days:        $1,470
2 Days:        $1070
1 Day:          $640

Day 1 - Monday, March 15, 2021:

Basics of Employee Relations

  • Day 1 of this course is geared towards less-experienced Employee Relations professionals. It will include an overview of how conduct and performance actions are addressed in the federal government. It will also include an overview of probationary periods and how the status of an employee’s tenure and appointment impacts how performance and conduct issues are addressed. The instructors will also cover the applicable regulations and other sources of guidance. This day will include a session on the basics of proposing and issuing discipline, including working with managers and supervisors, issuing the proposal notice, providing the documents relied upon in issuing the proposed discipline, providing the opportunity for an oral and written reply, and issuing a decision letter. The Douglas factors will also be introduced and discussed.
  • Day 1 will also include a discussion of the various avenues employees have to challenge performance and conduct issues, including filing EEO complaints, MSPB appeals, and grievances and an overview of each of these processes. Day 1 will also include a discussion of how performance concerns are handled as compared to conduct issues, including Performance Improvement Plans. The course will also provide an overview of the entire MSPB appeals process including what types of disciplinary actions can be appealed before the MSPB, Agency Files, and what documentation must be kept regarding disciplinary actions for support in future challenges by employees.

Day 2 - Tuesday, March 16, 2021:

Fundamentals of Issuing Conduct and Performance Actions

  • Attendees will walk through what they need to know to structure a clear charge that can be sustained if challenged before the MSPB. The course will start with the fundamentals of charging misconduct, and how to select the correct charge and appropriately use specifications, and the elements of proof required to sustain specific charges. The course will cover mastering Chapter 43 versus Chapter 75 performance-based adverse actions, including performance standards, Performance Improvement Plans, and the process and procedures for addressing performance, and proposing disciplinary action based on performance. Attendees will learn how to select the appropriate penalty where an employee has engaged in misconduct. Attendees will also learn about defenses that can be raised to charges, due process pitfalls and how to avoid them, and how to address claims of disparate penalties. The course will include discussion of how to avoid charging errors, with review of relevant cases from the MSPB and the Federal Circuit, and affirmative defenses.

Practical Considerations In Defending Charges and Penalties Before The MSPB

  • This session will cover all things concerning performance-based disciplinary actions, including how to differentiate and assist supervisors and managers with differentiating between performance and conduct concerns. Attendees will learn the statutory basics of and the similarities and differences between chapter 43 versus chapter 75 performance based removal actions, as well as the regulations that apply to SES-level employees, the procedural rights applicable to performance based removal actions, and how agencies must document performance in order to create a pathway to chapter 43 actions, including performance improvement plans. The session will also cover what the agency’s burden is to prove that removal was warranted for performance based reasons under both chapter 43 and chapter 75, including a discussion of OPM’s approval of performance appraisal systems relied upon by agencies. Attendees will discuss objective versus subjective standards of performance, as well as numerical standards or requirements for production. The session will also include a review of performance standards and how these are impacted where an employee has a disability or has requested accommodation during the process of being placed on a PIP or being proposed for removal.

Drafting the Proposal and the Decision Notices: Using Advanced Power Charging Techniques

  • This session continues the discussion about the key points of properly charging misconduct and expands it to include best practices when drafting proposal letters and decision notices. The session will include how best to frame proposal letters so that the agency is not on the hook for providing anything beyond the charge itself, and how best to include information regarding applicable regulations, information about the proposed penalty, and evidence in support of the charge and specifications. The session will include examples taken directly from MSPB cases where agencies unnecessarily included information regarding the proposed charges which caused problems upholding the conduct, so that attendees can take away lessons and apply them in their own work. The session will include an overview of advanced power charging techniques including conjunctive charges, alternative charges, and how best to use narrative charges when appropriate. Attendees will learn the dangers of using generic, narrative charges in proposing disciplinary actions for misconduct, including the danger of charge re-characterization, as well as a discussion of merged charges. This session will include a review of charges that can be difficult to prove if not drafted and supported appropriate, including charges of threat, theft, and insubordination. Attendees will come away from this session with an advanced understanding of how best to frame and draft charges, as well as practical tips of how to format the proposal and decision letters issued to the employee.

Day 3 - Wednesday, March 17, 2021:

Penalty Law and How to Sell the Penalty

  • This session will focus on how best to select and include the appropriate penalty, as well as discussion of the relevant case law, including when the MSPB will find it appropriate to uphold the charge but modify the penalty. The session will include discussion of what can go wrong when charges are mixed with penalties, as well as pitfalls extracted from real cases where agencies acted inappropriately with regard to the proposed penalty. Attendees will review the Douglas factors in detail and review case law which applies these factors to real-life cases. The session will also include discussion of the relevant case law surrounding consistency of the penalty with other discipline issued by agencies to other employees. Attendees will also review when and how agencies have to consider mitigating circumstances raised by the employee in response to the proposed discipline.

Affirmative Defenses & Harmful Procedural Error

  • Attendees will learn the three statutory affirmative defenses that employees can raise at the MSPB when challenging misconduct actions, including allegations of prohibited personnel practices and that the decision was made not in accordance with law. This session will also focus on how agencies can avoid harmful procedural errors, including claims that the agency violated an employee’s due process rights when a deciding official considers evidence not disclosed in the proposal notice or cases where an employee was not provided sufficient notice of the charges against them. Attendees will learn how to address cases where proposal actions may need to be withdrawn and reissued because of concerns surrounding due process, as well as the consequences of a due process violation being found by the MSPB. The session will include discussions of commonly raised affirmative defenses, including claims that an employee was being discriminated against with regard to their race or disability when disciplined. The session will also discuss claims of reprisal for protected whistleblowing activity, or other protected activity including the filing of EEO complaints.

*Each day includes a one-hour on-your-own lunch break.

Recording Rates
For all 4 Days:           $1,880
For only 3 Days:        $1,470
For only 2 Days:        $1070
For 1 Day:                 $640

Day 1:

General Structure of Labor-Management Relations, Information Requests
& Investigations

  • Basics of Federal Sector Labor Law: An Overview: This session will cover an overview of federal sector labor law and structure, including the Civil Service Reform Act of 1978 which established the Federal Labor Relations Authority (FLRA) and the Federal Service Impasses Panel (FSIP). This session will also cover judicial review of federal sector labor decisions, including standing, venue, and burdens of proof.
  • How Bargaining Units Are Defined and Composed: This session will discuss how a unit of recognition, or bargaining unit, is defined, including the relevant statutory and regulatory criteria, assessment of actual duties, statutorily excluded positions, and special classes of employees, including supervisory status. This session will also cover representation proceedings and unit clarifications and changes, including the procedures to file unit clarifications, and how to defend against unit clarifications.
  • How to Establish a Union: This session will cover the requirements that must be met to establish a union.
  • Responding to Requests for Information: This session will cover how best to respond to union requests for information that includes data that is normally maintained in the regular course of business, reasonably available, and necessary for full and proper discussion, understanding, and negotiation of collective bargaining subjects. This session will include a discussion of how to avoid ULPs filed for failure to provide information, as well as discussion of the terms “reasonably available” and “particularized need.”
  • Weingarten, Garrity, and Loudermill Rights: What they Are and Why they Matter: This session will discuss rights available to public sector employees, including bargaining unit-eligible employees. Attendees will learn about each right, including when it is triggered and what it means for questioning, investigating, and disciplining a Union employee.

Day 2:

Contract Negotiations: From Drafting Proposals to Impasse

  • Introduction to Collective Bargaining in the Federal Sector: This session will discuss strategies for negotiating a CBA with a Union representing federal employees. It will begin with a brief review of the collective bargaining process, as well as of the types of bargaining, including term, midterm, and impact and implementation bargaining versus substantive bargaining. This session will also provide tools to advise agency labor representatives during bargaining, as well as common things to look for when reviewing a CBA for agency head review.
  • Management Rights under Section 7106 of the FLRA - 2 Parts: This session will guide attendees through the management rights outlined in the FLRA and will review recent decisions interpreting this section of the Statute.
  • Strategies for Negotiating a Collective Bargaining Agreement: Attendees will then learn about common pitfalls in negotiating a federal sector CBA and will learn strategies for effectively advocating for the Agency, including information to request before bargaining begins, terms to include in a federal sector CBA, and unique provisions affecting the federal sector focusing on topics such as discovery procedures and arbitrator selection.

Day 3:

Contract Negotiations: From Drafting Proposals to Impasse, Cont.

  • Mandatory, Permissive, and Prohibited Subjects of Bargaining: Attendees of this session will obtain an introductory understanding of the mandatory, permissive, and prohibited subjects of bargaining and strategies for negotiating these subjects. This session will also include an activity to allow attendees to apply their newly-learned skills.
  • The Federal Service Impasses Panel: Attendees will learn about the FSIP, its role in resolving impasses, and how to get the most from it, including how to request assistance, how the VA can utilize the FSIP and defend against matters brought against it to the FSIP.
  • Basics of ULPs - 2 Parts: This session will cover the types of ULPs and the procedures for filing a ULP, how agencies can defend against ULPs, and appeals of ULPs.

Day 4:

Grievances, Arbitration and Statutory Appeals

  • Arbitration Organization and Advocacy - 2 Parts: This session will provide practitioners with specific tips to prepare for arbitration based on various types of claims, including but not limited to disputes about discipline, benefits, and interpretation of the CBA. Attendees will learn skills to respond to a Union’s case, and will also learn about threshold arguments to raise at arbitration, including the issues of arbitrability and negotiability. Attendees will also learn about filing dispositive motions in arbitration (yes, they can be filed!).
  • Challenging An Arbitrator’s Award: Attendees will learn about the procedures for challenging an arbitrator’s decision, including filing exceptions with the FLRA, as well as the bases and standards for reviewing an arbitrator’s award.
  • Attorneys’ Fees in the Federal Sector Labor Context - 2 Parts: This session will cover recent efforts by the FLRA to change how arbitrators evaluate the attorneys’ fees a prevailing party should recover in the context of federal collective-bargaining (the Allen factors under attack). Attendees will also learn practical tips for reviewing and responding to a prevailing party’s fee petition, including evaluating and challenging fees sought, and relevant case law regarding seeking fees in this context.
  • Official Time: This session will cover when union officials and unit employees are eligible to receive official time, and best practices for tracking and limiting this time, while ensuring employees receive appropriate pay for official time. This session will also discuss when the union has the right to attend formal discussions and when an employee has the right to have union representation during work meetings, including investigations.
  • Recent Developments Impacting Federal Sector Labor Relations: This session will cover recent executive orders and their impact on labor relations, including on contract negotiations, grievances, and related issues.

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