Extent of telework, attendance abuse a gray area at patent office

If a patent examiner clocks in for telework and there’s no one there to monitor him, does that make it wrong?

Pointed words from both sides of the aisle flew at witnesses testifying Dec. 7 for an oversight subcommittee hearing to determine whether there is an actual problem of time and attendance abuse at the U.S. Patent and Trademark Office, and if so, what’s being done to address it.

At issue is an “alarming report,” according to Rep. Mark Meadows (R- N.C.) the chairman of the Subcommittee on Government Operations. The report was published in August by the USPTO’s Office of Inspector General and claimed more than 288,000 hours of unsupported work was logged among roughly 8,4000 patent examiners between August 2014 and November 2015,

“These hours equate to $18.3 million in potential waste,” Meadows said. “Four hundred and fifteen of the examiners covered in the analysis had 10 percent or more of unsupported hours. Three hundred and ten of these examiners received above average performance ratings that account for nearly 98,000 of the unsupported hours.”

Another OIG review that took place over 9 months discovered more than 137,000 potentially unsupported hours worth $8.8 million — or about 1.6 percent of total computer-related examining time for that period.

“While some may argue that the total amount of unsupported hours is less than 2 percent of the total work hours logged in by patent examiners, even one unsupported hour is too many,” Meadows said.

Pamela Schwartz, president of the Patent Office Professional Association (POPA), called the IG’s August report, one “based on flawed methodology and faulty assumption.”

“Reliance on turnstile and VPN workstation records does not reliably capture all of the work performed by the examiners,” Schwartz said. “The OIG did not account for unrecorded, uncompensated overtime regularly worked by examiners to meet their production goals, which far exceeds the 2 percent unsupported time.”

David Smith, deputy inspector general for Department of Commerce, assured the subcommittee that the findings of his office’s investigation “do not indicate this is a widespread problem” — a result similar to that of the 2015 review done by an independent panel of the National Academy of Public Administration (NAPA).

“Our investigation found the vast majority of patent examiners claimed hours were supported by evidence in various records of computer activity,” Smith said. “Even though it may not be widespread, the data establishes that claiming hours not actually worked is a problem.”

The OIG made several recommendations in its August report, including the reevaluation of examiner production goals, requiring examiners to give their work schedules to supervisors and staying logged in to the USPTO network during work hours when the network is available.

The report did acknowledge that there is no way of verifying how much time telework employees spent working offline, and that this could account for some of the unsupported time.

The OIG report also noted that after the February 2015 implementation of USPTO’s new telework policy, the prevalence of unsupported hours fell.

“We did not take an overly harsh look at the time records, or the time periods that the employees actually claimed,” Smith said. “If an employee swiped in, and said they were there for 8 hours, then we gave them credit for 8 hours. If we were to take a harsher view, and go back and look at actual computer time spent in some type of activity on their computer, it would increase the number of unsupported hours for the on-campus employees by 327,000 hours.”

Rep. Gerry Connolly (D-Va.) echoed Meadows’ statement that even 1.6 percent of total computer examining time is too much, but warned Smith that “one needs to be a little bit careful about drawing broad conclusions from particular incidents,” referring to an IPWatchdog.com article Smith referenced that included a story of at least one examiner claiming they were completely justified to charge the full amount of allocated time for a task even if it was completed in half the time.

“None of us want to see timecard fraud,” Connolly said. “In fact, if you uncover it we want to see it pursued, but I am concerned that it comes to characterize an agency where it may or may not, in fact, be at all characteristic of normal practice.”

USPTO Deputy Under Secretary of Commerce for Intellectual Property Russell Slifer said his agency was working to eliminate whatever time and attendance abuse does exist at the agency.

“It is a concern of mine, to jump to the conclusion that unsupported hours looking at digital data equates to work that wasn’t done,” Slifer said. “That’s why we’re digging in as an agency in trying to answer the question of why is there a mismatch between digital data and the certified time record. When we look at production of records for these individuals, the quality and quantity of what they’re producing doesn’t point to the same result and we want to get to the bottom of this so that third parties that are looking at our certified time and questioning whether our employees are actually working when they say they are, producing what they say they are, is accurate; so that we can resolve the question of whether we have any systemic problems or whether we have individual issues that any agency would have with individuals.”

Slifer agreed to send a breakdown to the subcommittee of disciplinary actions for 30 people that were part of an internal USPTO investigation, while Schwartz agreed to provide the subcommittee with what actions POPA could support in terms of disciplinary action for falsifying time and attendance information.

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