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For more than two decades, the General Accounting Office, scholars, managers and employees have described the federal employee redress system as being unwieldy, inefficient and overly protective of the rights of individual employees. Despite this criticism, the redress system--actually several different systems policed by several different agencies--has continued to grow, both in scope and complexity. It's an old problem that may finally be getting a new look.

The problems with the federal employee redress system garnered some brief but unmistakable prime time attention last October in the weeks leading up to the congressional vote on whether airport security personnel should be federal employees or a contractor workforce supervised by a small number of federal overseers. While some commentators endorsed the contractor option with generalities about the need to have a "responsive disciplined force," others were more direct. Presidential spokesman Ari Fleischer summed up the issue succinctly: "If somebody joins the federal civil service, it's often impossible to take any discipline action in a prompt fashion."

Presumably, the purpose of the federal employee redress system is to ensure fair treatment of people in the government's employ. In principle, that is straight enough. But for more than 20 years, the balance between employee rights and the government's ability to discipline or fire misbehaving or poorly performing employees has tipped decidedly toward the employees. Consider these excerpts from government reports.

A 1978 GAO report stated: "Supervisors and managers perceive firing as a difficult chore, which often lacks top-level management support. People at all levels fear reprisals from employees who may file adverse action appeals, discrimination complaints, and lawsuits . . . . Removal procedures are complex, especially the detail and specificity required in stating reasons for removal; the process is also lengthy and time consuming. Supervisors and managers instead tend to use an informal system of working around, isolating, reassigning, sending to long-term training, or even promoting unsatisfactory employees."

A 1996 GAO report said: "First, because of the complexity of the system and the variety of redress mechanisms it affords federal employees, it is inefficient, expensive, and time-consuming. Second, because the system is so strongly protective of the redress rights of individual workers, it is vulnerable to employees who would take undue advantage of these protections. Its protracted processes and requirements divert managers from more productive activities and inhibit some of them from taking legitimate actions in response to performance or conduct problems."

And, a 1999 OPM report said: "[Managers and employees who've been exposed to the employee redress system] found the investment of time and energy required over an extremely long period to be daunting. This was compounded by the stress resulting from the employees' counter-charges, grievances, accusations, appeals, general hostility and attempts to subvert the supervisor. One described the documentation required as 'horrendous. . . . You open yourself to charges of discrimination and harassment. If there is an opportunity, someone is going to use it against you. The accuser becomes the accused."

Federal employees enjoy considerably more redress rights than their private sector counterparts. The GAO described the discrimination complaint process available to federal workers as "not just cost-free to the employee, but risk-free as well." The net effect is that federal employees file discrimination complaints five times more often than private sector workers. Moreover, according to the GAO, "because the system is so strongly protective of the redress rights of individual workers, it is vulnerable to employees who would take undue advantage of these protections . . . to harass supervisors, or game the system."

Disgruntled federal employees also have numerous forums in which to pursue employment-related grievances. Not only do these agencies have their own sets of rules and regulations and their own bodies of case law, there is considerable overlap between their respective subject area jurisdictions. To make matters worse, one agency's required course of action is another agency's violation. For example, whether a union representative has a right to attend a mediation session between an EEO complainant and his or her employing agency is anybody's best guess. If you're the federal manager who says, "Yes, the union has an independent right to attend," you may end up impermissibly violating an EEO complainant's privacy rights. On the other hand, if you say, "No, the union doesn't have a right to have a representative present," you may get your agency cited for committing an unfair labor practice by excluding the union from a formal discussion.

What's particularly ironic about this whole state of affairs is that agencies like the Equal Employment Opportunity Commission and the Federal Labor Relations Authority presumably are in the business of safeguarding the rights of working people. Yet, as the universe of rights they ostensibly safeguard continues to expand, the rising cost of maintaining a workforce subject to such an irrationally unbalanced system may actually end up driving more jobs to the private sector--where employee protections are considerably more modest in scope.

Lobbyists and policy-makers who favor expanding the right of redress may wish to consider the possibility that their efforts may actually be imperiling the many for the sake of overprotecting the few.

The full text of this article appears in the Labor Lawyer, Vol, 17, No. 3 Winter/Spring 2002. The views expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Air Force, the Defense Department or the U.S. government.

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