Needless to say, managers are more likely to say they're on the receiving end of the ancient art of "packing for exportation" than to confess to foisting bad apples on others with bogus evaluations. How does one guard against export packing and what, if any, are the legal implications?
Background investigations can uncover potential problem employees. Law enforcement and intelligence agencies send investigators out to interview current and former supervisors and colleagues. Most agencies, however, are forced to rely on whatever the receiving manager can glean from phone calls and personal contacts.
There are many warning signs. A reluctance to offer information voluntarily might mean the export packer is feeling remorse and finds lying on paper with a positive evaluation easier than fibbing on the phone. Another sign is damnation by faint praise. Question: "What is he like as an employee?" Answer: "His ties never clash with his shirts."
When I was a federal manager, I once was asked by a prospective employer about an odious employee. I said I would gladly offer my candid assessment as soon as he presented me with a release from the employee and a "hold harmless" agreement to pay any damages and attorney fees I incurred as a result of a lawsuit. Message received.
Many managers are afraid of being sued by current or former employees, but this fear is ill-founded. The Supreme Court ruled in 1983 in Bush v. Lucas that federal employees cannot sue federal managers for anything arising from a personnel action or the employer-employee relationship.
If trouble does arise, then it most likely would come from the other side. Agencies that tolerate the export packing of violent employees, sexual harassers or those whose negligence has endangered lives risk, at the minimum, excoriation by the press and Congress.
Most problematic, perhaps, is the common settlement agreement. Here, the agency cancels a removal action and gives the employee a clean record and neutral reference. The notification of personnel action reads, "Left voluntarily for personal reasons." In such a case, the agency will say only that "Mr. Jones worked here from 1996 to 2005."
This does not always mean the employee is a dud, but it should raise an alarm. Although the Court of Appeals for the Federal Circuit frowns on such settlements and hinted that it might someday outlaw them as contrary to "sound governmental administration," they are valid and enforceable.
In 1995, Joseph Poett left the Agriculture Department under a "neutral reference" settlement agreement. Years later, he became suspicious that his former supervisor had not been neutral. After he failed to secure a job at the Occupational Safety and Health Administration, Poett complained to the Office of Special Counsel, which ultimately revealed to him that the supervisor had violated the agreement. After getting no satisfaction from the Merit Systems Protection Board, he took his case to the federal appeals court. It found that the supervisor had been reluctant to talk to OSHA, per the terms of the settlement, but eventually said Poett was not her best employee.
The court said this relatively innocuous statement constituted a breach of the settlement agreement, allowing Poett to rescind it, with Agriculture owing him 10 years of back pay and reinstatement.
A prudent person probably would be reluctant to hire someone who won't discuss the circumstances surrounding his departure. But there is no foolproof way to keep a problem employee from being foisted upon an unsuspecting boss.
All managers can do is question the candidate closely, try to find supervisors and co-workers willing to speak candidly, and look for the warning signs: short tenure, willingness to accept a seemingly lesser position, a history of hopping from agency to agency, and failure to list current or former supervisors and colleagues as references.
Following these steps, managers can reduce -- but, unfortunately, not eliminate -- the chances of being scammed by an exporter.