ARE THE DOUGLAS FACTORS DEAD?
That is the title of a post from the folks at the Federal Employment Law Training Group (FELTG). Although the group’s primary mission is to train managers, I thought this post was reasonably balanced and recommend you read it by clicking here. While the initial reaction among most union reps is that termination of the Douglas Factors is terrible news it may be yet another White House screw up ranking up there with the reflecting pool fiasco, the Iranian war that was going to last a week or two, and the nearly trillion dollar tariff refunds.
As the FELTG folks point out, the MSPB reg does not prohibit agencies from continuing to use the Douglas Factors. Consequently, if an agency decides to stop using them, it must serve notice on the union, provide requested information, and complete negotiations before it does so. A failure to do so will undermine any disciplinary actions they take without automatically considering them. I can think of a number of proposals that would make any agency regret a decision to abandon them.
Another problem an agency faces if it abandons them is the mind-boggling ambiguity of the “totality of circumstances” (ToC) test MSPB suggests. That is a litigation storm waiting to happen, e.g., what is and is not included in the agency’s definition of the concept, are they applied uniformly or disparately, if another agency considers different factors under its ToC analysis does that suggest your agency got it wrong, do the pre-CSRA adverse action mitigation factors now apply, etc.? And just imagine the fun a union rep will have when a manager takes the stand and under oath has to explain what factors she considered under the ToC test and why she did not consider all the factors that others are using.
If I was still sitting back advising agency leaders about what to do with this latest stunt from the Mango Marvel’s people, I would tell them “to consider the source” and just hold tight.
