Memorandum of the Day

[bartleby]

MEMORANDUM


Date: February 18, 2014

To: All Administrative Law Judges

From: Debra Bice /s/
Chief Administrative Law Judge

Subject: New Telework Provisions--INFORMATION

Article 15 of the Collective Bargaining Agreement between the Social Security Administration, Office of Disability Adjudication and Review and the Association of Administrative Law Judges, International Federation of Professional and Technical Engineers, AFL-CIO & CLC was effective September 30, 2013.
I support the availability of telework for our ALJ corps to help you balance work and life commitments. At the same time, I must ensure that telework does not diminish our common mission to provide the public with quality, timely, and policy-compliant hearings and decisions. Several provisions in the new Article 15 support this mission by focusing on accountability.

Regarding these particular provisions, I want to share with all of you guidance that I have provided the HOCALJs. For most of you, these provisions and guidelines will likely have no effect on your ability to telework because you already are scheduling a reasonably attainable number of hearings, and do not allow your cases to become seriously delinquent. As always, I appreciate the hard work and dedication you exhibit every day in helping to achieve our common mission to provide the public with quality, timely, and policy-compliant hearings and decisions.

Section 7.L.3 ‑ Scheduling a reasonably attainable number of cases for hearing
This section provides that judges will schedule hearing days prior to selecting the days on which they telework, and if a judge does not schedule a reasonably attainable number of cases for hearing, then the judge’s ability to telework may be restricted until a reasonably attainable number of cases are scheduled.
There is no fixed number of scheduled hearings required under this section, and any determination regarding the reasonableness of hearings scheduled depends upon the judge’s specific situation.

Considering the necessity for quality, timely, and policy compliant hearings and decisions, and historical data, scheduling an average of at least fifty (50) cases for hearing per month will generally signify a reasonably attainable number for the purposes of this contractual provision. I want to emphasize that this provision concerns the number of hearings scheduled, not cases heard or dispositions issued. Accordingly, if you schedule at least an average of fifty (50) cases for hearing per month during a twelve-month rolling cycle, then management generally will determine you have scheduled a reasonably attainable number of cases for hearing for the purposes of this contractual provision. Conversely, if you schedule fewer than an average of fifty (50) cases for hearing per month during a twelve-month rolling cycle, then management likely will determine you have not scheduled a reasonably attainable number of cases for hearing, unless there are extenuating circumstances. For example, management may consider whether the ALJ is on a learning curve or training program or whether the ALJ has been on extended leave. Management also may consider postponement or heard-to-scheduled ratios.

The data showing the average number of hearings you have scheduled during the past twelve- month rolling cycle is now available on “How MI Doing?” Just click on the ALJ Dashboard – Hearings – Scheduled per day. This report reflects hearings scheduled per day - an average of 2.4 hearings scheduled per day is the equivalent of an average of 50 hearings scheduled per month.

When, after consideration of all factors, management determines that you have not scheduled a reasonably attainable number of cases for hearing, they will inform you of the determination and of the possibility that your ability to telework may be restricted. If management concludes there is no acceptable reason for not scheduling a reasonably attainable number of hearings, then they may restrict telework by not approving telework or canceling previously approved telework days. Again, management will consider any extenuating circumstances in making this determination.

While we believe that scheduling an average of fifty (50) cases for hearing per month is an appropriate guideline for the purposes of this contractual provision, we recognize that time may be needed for some judges to establish that they have scheduled a reasonably attainable number of cases for hearing. Therefore, subject to the preceding paragraphs, please note the following guidance:

Telework Period Guidelines for average number of hearings scheduled over last 12 months
April 2014 – September 2014 Start-up period
October 2014 – March 2015 40 or more scheduled hearings
April 2015 – September 2015 45 or more scheduled hearings
October 2015 and continuing 50 or more scheduled hearings




Section 7.L.4 – Seriously delinquent cases in judge-controlled status
This section provides that if a judge has one or more seriously delinquent cases in an ALJ controlled status, then the judge’s ability to telework may be restricted until the matter has been resolved.

There is no fixed number of days in status after which a case becomes seriously delinquent for the purposes of this contractual provision and any determination depends on the judge’s specific situation
.
Although there are no fixed numbers, we can provide you with some general guidelines for the purposes of this contractual provision. Absent extenuating circumstances, management generally will consider a case pending in SIGN for more than ten (10) calendar days as seriously delinquent, and a case pending in ARPR, ALPO, EDIT or other ALJ controlled statuses for more than thirty (30) calendar days as seriously delinquent. Management may consider any known extenuating circumstances, such as whether the ALJ is on a learning curve or training program, whether the ALJ has been on extended leave, or whether the ALJ has been on a travel docket, in determining whether cases are seriously delinquent.

The MY1 (My Cases) report in DART will easily allow you to see if you have any cases in SIGN for more than ten (10) calendar days or in other judge controlled statuses for more than thirty (30) days.

If management determines that you have a seriously delinquent case(s), you will be advised of the situation and of the fact that the failure to correct the matter may affect your ability to telework. At that point, you will have fifteen (15) workdays in which to resolve the matter. If the matter is not resolved within that time, management may restrict your ability to telework until the matter has been resolved, and may also direct you to report to the office on a previously scheduled telework day(s) to work on the case(s) and appropriately move it to the next status.
Again, we recognize that some judges currently may have cases pending in ALJ controlled status beyond the above guidelines for the purpose of this contractual provision. Therefore, subject to the preceding paragraphs, a case generally will be considered seriously delinquent as follows:

Telework Period Status Guidelines for
Seriously Delinquent Cases

April 2014 – September 2014
SIGN 10 days or greater
EDIT 45 days or greater
ARPR/ARFL and ALPO/ALFL
60 days or greater
October 2014 – March 2015
SIGN 10 days or greater
EDIT 30 days or greater
ARPR/ARFL and ALPO/ALFL
45 days or greater
October 2015 and continuing
SIGN 10 days or greater
EDIT 30 days or greater
ARPR/ARFL and ALPO/ALFL 30 days or greater


Again, I believe that these telework provisions will affect only a small number of judges. Most of you are already scheduling a reasonably attainable number of cases, and do not have cases that are seriously delinquent. Thank you for your commitment to public service and the issuance of timely, quality, and policy compliant hearings and decisions.

Released by:
Charlene Fields
Management Support Specialist
Office of the Chief Administrative Law Judge
Division of Administrative Support/HQ Support Branch
SSA/Office of Disability Adjudication & Review

[moopigsdad]

Thanks for posting this for us "outsiders" Bart. Very interesting reading and things are changing in the process.

[maxlaw]

Yes, there's a fair bit of weeping and gnashing of teeth over this one. Does anyone know the background of the benchmark times? Were they arbitrarily adopted, or were there actual metrics that supported these periods.

[deltajudge]

8-)Stay tuned.

[chessparent]

Ironically, I got an email today from a union Rep telling me that they have successfully negotiated an extra flexiplace day for NTEU. Hmmmm-my current gig is looking better and better.

[christina]

not neccessarily chessparent. they may have similar bells and whistles on NTEU flexiplace...

[papresqr]

Feb 18, 2014 22:41:48 GMT -5 christina said:

not neccessarily chessparent. they may have similar bells and whistles on NTEU flexiplace...

I can't speak to the NTEU contract, but there are no such specifics in the AFGE Telework (new name, same idea) contract.  Just a general "maintain at least an acceptable level of performance (e.g., successful contribution rating)" and "not be under a Performance Assistance or Opportunity to Perform Successfully plan."   Which could be better or worse, depending on the circumstances or their interpretation of "successful" performance.

[bartleby]

A few considerations regarding Chief Judge Bice’s memorandum:

1. Telework was and has never been a privilege. The Agency that brought us the Clean Air Act mandated that all Federal Agencies that had personnel that could work at home be allowed to do so.

2. In the past I have made reference to confusing contradictory language in Agency Policy, Regulations, POMS, Hallex, Act, Directives, etc. This is another one:
"There is no fixed number of scheduled hearings required under this section, and any determination regarding the reasonableness of hearings scheduled depends upon the judge’s specific situation."
This is followed by the very next line:
"Considering the necessity for quality, timely, and policy compliant hearings and decisions, and historical data, scheduling an average of at least fifty (50) cases for hearing per month will generally signify a reasonably attainable number for the purposes of this contractual provision."

Although the Agency says there is no fixed number, they have determined that number to be 50???

3. The Agency has set the Goal at 500 Decisions a year. They have now increased it to 600, i.e., 50 per month times 12.

4. Unfortunately even this number is incorrect. If you have over 15 years of service, you receive 26 days of leave. There are 10 Federal Holidays a year. If you attend training or go the AALJ Conference, that is 5 days of administrative leave. All in all, this comes to over 8 weeks of time when you will not be able to hear cases. Basically, now you will have to schedule 600 hearings in a 10 month time period. That means in reality you will be scheduling 60 hearings a month instead of 50. Which correlates to doing the amount of work required to hear 720 cases a year during your work time.

[redryder]

While the language in point #3 may be technically correct, it is misleading. The goal is 500 dispositions per year per ALJ. Those dispositions include dismissals which most judges do not write or issue instructions for. I happen to write my own dismissals. The actual drafting, proofing, signing and posting the info in CPMS takes less than 10 minutes for the vast majority of these. The only ones that require more thought are res judicata dismissals which are few and far between. Look at the stats for last year. The judges who issued 500+ dispositions did not issue 500+ decisions on the merits of the claims. A good number of that count are dismissals.

[hopefalj]

Point three is also a little disingenuous because I don't know of any ALJs that hold 100% of their scheduled hearings in a month. In our office, if you schedule 50, you'll hear 38-43 depending on the month. Maybe I'm in the bizarro office, but given the dismissal rates around the country, I doubt it.

[bartleby]

Redryder, Do you review your cases prior to them being dismissed? Are you prepared to hold the hearing and then they don't show up? Have you put as much effort into your dismissals or do you somehow know which ones will be dismissals? I prepare all my cases the same and have a specific amount of time set aside for the hearings. When they don't show up, I dismiss if I can, but all it saves me is writing the instructions and editing the draft. It looks like you have to schedule 600 cases a year to work telework. That will equal 600 dispositions of some type. won't it? And that will mean you have to prepare and be ready to schedule and hear 600 cases a year, doesn't it? Why is that misleading? Or am I reading something wrong??

[prescient]

There has to be some way for the agency to monitor what is actually done while at home. As a writer, it's obviously simple to quantify how much work we need to accomplish. For judges, it's not so simple. The lap tops log every time we use them so I guess havin the HoSA check each week to see if they were actually used for the 8/10 hours is another way they could monitor. But IMO that'd be worse.

[ssareality]

Feb 18, 2014 19:04:17 GMT -5 maxlaw said:

Yes, there's a fair bit of weeping and gnashing of teeth over this one. Does anyone know the background of the benchmark times? Were they arbitrarily adopted, or were there actual metrics that supported these periods.

The long-used benchmarks for Quality Case Processing, posted online, are much less than the 7 and 30 listed in this memo. 7 and 30 days are quite generous numbers.

[ssareality]

I also think it's worth pointing out, with regard to bartleby's point #2 above, the memo bolds and underlines the word "generally" as it relates to the number 50. I don't think it's at all contradictory to say there is no fixed number, but 50 will generally suffice according to historical data, etc.

[bartleby]

I don't know why this is so hard...

"Conversely, if you schedule fewer than an average of fifty (50) cases for hearing per month during a twelve-month rolling cycle, then management likely will determine you have not scheduled a reasonably attainable number of cases for hearing, unless there are extenuating circumstances. For example, management may consider whether the ALJ is on a learning curve or training program or whether the ALJ has been on extended leave."

You have three (3) very limited exceptions included in this statement. Would it not seem as if the Agency is setting a fixed number? I am amazed that anyone can see this for anything other than what it is.

Further, "There has to be some way for the agency to monitor what is actually done while at home." This is absurd. Judges are professionals and should not be monitered for their time in this fashion. The APA prevented this and now it would appear that many are in full acceptance of the micromanagement and control the Agency is attempting to put in place..

[ssareality]

I think the language speaks for itself. The contract says "reasonably attainable number of hearings." The memo gives some guidance of how that will be interpreted. It gives a general (bold and underlined) number, but essentially says each individual will be looked at on a case-by-case basis.

And while most judges are professional and don't need to be closely monitored, we're all kidding ourselves if we can't acknowledge that there are probably a few bad apples out there among the 1000+ ALJs. I think it's pretty clear this is just a tool for management to use in dealing with those few bad apples.

[bartleby]

It is my understanding that this is across the Board and there will be no exceptions. How could they possibly enforce this is they let one office let one Judge do 40 and another have to do 50? It is either all or none or it won't stand up to a grievance.

[deltajudge]

8-)It's a simple thing. Anybody that has been around for a while, knows the memo is a threat. As Debbie pointed several times, it is not aimed at those that are doing what the memo also sets out several times, that are pulling their weight That's where the problem comes in with this agency. They should go at those not pulling their weight, but no, they go after everybody. They sit in their ivory towers and think all this up. What is chilling, is the statement that "guidance has been issued to HOCALJ's to carry out these "guidelines." So to carry out those "guidelines" you know the HOCALJ is not going to do it. He'll tell the HOD to get to it, and the HOD will have to tie up several of the support staff to gather the complex information as to age and location of cases assigned to ALJs, in order to determine what ALJs will be counseled about telecommute. Think of the FOs involved along with the number of ALJs. Quite a lot of non-productive work. Management is brilliant.

[onepingonly]

The memo is referencing an average of 50 cases per month over a rolling 12-month period. It's a statistic reported in the DART reports. It takes literally about 30 seconds to access (for the ALJ or HOCALJ). The memo tells you how to access the report. There's no complicated research to be done.

[ssareality]

I know it's more interesting to come up with conspiracy theories about what the agency is really trying to do, but the most simple and obvious answer is usually the right one.

I have no doubt, this will be handled the same as all other laws, rules, etc. - the specific facts will dictate the specific result. This guidance is just that. It's not a threat, it's not a hard set of numbers with no wiggle room for individualized review of particular circumstances that a judge may face.

As Delta correctly points out, the agency should go after those who don't pull their weight. But in order to do so, they need to have rules to point to. Hence, the scheduling of a reasonable number of cases, etc.

I know it may be fun for some to point to management and criticize the 'beurocrats in their ivory towers', but the vast majority of those folks came from a hearing office at one point or another. They've seen both sides, while most of those so quick to criticize have only been in the field.