Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.
For many federal employees, few things are more unbearable than being left with nothing to do. Idleness can be torture.
My years heading the Merit Systems Protection Board (MSPB) showed me that most federal employees are, or at least want to be, productive. However, given certain business cycles, overstaffing, funding problems, and other issues, some employees simply run out of meaningful work to perform. The U.S. Department of Commerce Office of the Inspector General’s recent report on how U.S. Patent and Trademark Office paralegal specialists received full-time pay despite having insufficient workloads is probably an extreme example of federal employee idleness.
The Commerce Department IG attributed this workload problem, which ended up costing the federal government $5.09 million, to a mismatch between the number of Patent Trial and Appeal Board (PTAB) judges and the number of paralegals. Although mismanagement was identified as the main problem behind the paralegals’ lack of work, other factors can play into other federal employees’ light workloads.
One of those factors is a practice called “deliberate idling,” which highlights just how intolerable the deprivation of meaningful work can be for federal employees. “‘Deliberate idling’ by an agency is a factor that may cause working conditions to become so difficult that a reasonable person would feel compelled to resign or retire,” the MSPB, while I was chairman, said in Cano v. U.S. Postal Service (2007). And before hearing this case, the Board said in its decision for Shoaf v. Department of Agriculture (2004), to which I wrote a separate but concurring opinion, that deliberate idling “connotes knowing or intentional conduct.”
It is often very difficult to prove a manager deliberately idled an employee, though with the help of an experienced federal employment law attorney it is not impossible. Shoaf, for example, involved a U.S. Forest Service forester and interdisciplinary team leader who claimed his resignation was involuntary and prompted by the agency’s retaliation for his whistleblowing activity. The appellant largely blamed his resignation on his reassignment to a position in which he was given “little or no responsibilities or duties to perform.”
Although the MSPB acknowledged the appellant in Shoaf “was only sixty percent busy from January through August 1994, and projects were virtually nonexistent for the rest of that year,” the Board rejected his claim that the agency “deliberately kept him idle.” The Board pointed out that the agency had tried to find work for the appellant to perform, but that he was expected, as a GS-12 employee, to “search out some of [his]own work,” and significant work for a project eventually became available. Further, in an e-mail to his supervisor, the appellant acknowledged that his underutilization was, in part, “due to…[his unit]being over-staffed and there simply not being enough work to go around.”
Proving that an employee’s idling created working conditions intolerable enough to force him or her to resign can be as difficult as proving an agency engaged in deliberate idling. Timing is extremely important here. Out of the several factors the Board listed for why it believed the appellant in Shoaf did not involuntarily resign, the U.S. Court of Appeals for the Federal Circuit said that the fact there was a 19-month delay between the appellant’s transfer and resignation was “of special import.” In other words, the appellant, after finding his workload insufficient, waited too long to resign.
In contrast, Cano’s appellant, who had high blood pressure, retired less than two months after the agency suspended his driving privileges for one year, even though it had not done the same to other employees with more serious medical conditions. In addition to claiming he was a victim of disability discrimination, the appellant claimed the agency harassed him and provided him with insufficient amounts of work, resulting in a decrease of pay. The Board recognized this decreased workload “led to a decrease in his pay that ultimately contributed to his decision to retire.” Taking into consideration this deliberate idling and other factors, the Board found the appellant had “nonfrivolously alleged that his working conditions became so difficult that a reasonable person would have felt compelled to retire.”
Federal employees languishing because of light workloads should consult with an attorney who can help them put management on notice of their dearth of meaningful work and seek corrective action. An attorney can also fight retaliatory deliberate idling imposed in response to protected activities, such as blowing the whistle or filing a discrimination complaint.
Neil McPhie is the Director of Legal Services for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at info@fedattorney.com.
