The Foreign Service Journal, June 2022

AFSA NEWS 62 JUNE 2022 | THE FOREIGN SERVICE JOURNAL Foreign Service Grievance Board: Supervisors’ Duty to Counsel The Foreign Service Griev- ance Board issued two important decisions recently that AFSA members should note. Both were in favor of the grievants, who were represented by AFSA Griev- ance Counselor Heather Townsend. One grievant was appeal- ing a low ranking; the other was appealing a selection out. In its decision, the board emphatically and explicitly underscored the importance of timely and specific coun- seling. In both cases, the griev- ants prevailed because they were able to prove, by a preponderance of evidence, that the State Department had not provided timely and specific counseling on performance for which they were criticized in their EERs, and on which the low ranking and/or selection out had been based. These deci- sions are important for both employees and supervisors. Both decisions made similar points: Supervisors have a duty to counsel, and that counsel- ing must be both timely and specific. Ideally, counseling should be memorialized on a DS-1974 form. If it is not, there should be some other written record made of what was said. The absence of documentation does not con- stitute a lack of counseling, and oral counseling counts as counseling even if not sub- sequently documented. However, the lack of a written record makes it dif- ficult for supervisors to dem- onstrate that counseling took place. As the board noted in one decision: “We caution that the agency proceeds at its own risk when there is no written proof of counseling, as counseling is a substan- tive requirement for the documentation of deficient performance.” “Timely” is not specifically defined in the FAM except in cases of unsatisfactory performance, in which case the employee must be given 30 to 60 days to correct the performance issue. Otherwise, it is interpreted to mean that counseling must have been delivered early enough in the rating period for the employee to have time to correct the problem. In general, the more complicated the issue, the more time should be allowed. Notice given with less than a month left in the rating period is unlikely to be deemed timely. “Specific” means there should be sufficient detail that the employee knows what the problem is and what he or she has to do to fix it. Significantly, in both these cases, the board did not focus on whether the criticisms were valid or not. In other words, the board made it clear that, even if a criticism is valid, it must be addressed with the employee in a timely manner in order to be included in the EER. Additionally, the board rejected arguments that the raters had only learned about the alleged poor performance late in the rat- ing period. The board has now established the clear expectation that supervisors should be aware of employee performance and may not use the EER as a substitute for counseling during the rat- ing period if they are not. What is the takeaway for supervisors? Pay attention to your employees’ perfor- mance and conduct; address issues as early as possible and as often as necessary with documented counsel- ing; and if you have not counseled the employee on something during the rating period, whether formally or informally, do not mention it in the EER. If you learn about some- thing only at the end of the rating period, you would be wise to establish it, instead, as an expectation at the start of the next rating period, and then counsel early and often. n AFSA and USAID are renegotiating their framework agreement (aka collective bargaining agreement). Signed in 1993 and slightly updated in 2008, the agreement provides a broad framework for AFSA–USAID relations, covering areas such as union rights and representation; management rights and responsibilities; and negotiation procedures. AFSA and the agency have agreed on ground rules for discussions, and formal negotia- tions will begin in June 2022. The current framework may be found on the AFSA website under the USAID Vice President’s page at n USAID Framework Negotiations Underway NEWS BRIEF