Federal managers attempting to deal with employee performance problems are increasingly at risk of running afoul of complex laws, regulations, and judicial rulings, two veteran employee relations experts said at a seminar this week.
But there's hope for managers, said William N. Rudman, a retired federal investigator and manager, and Page Newton, a Justice Department legal adviser. They counseled against simply giving up in the face of intractable performance issues that are present in virtually every part of the government work force. Rudman and Newton told the 80 managers in their audience that they have the duty not to let performance problems fester, lest these problems demoralize their entire offices and cut into mission effectiveness.
The employment system in the government is stacked in favor of employees with grievances, the experts said, and the incidence of grievances filed is much higher in government than it is in the private sector. Employees' rights are well-defined and are protected by various laws on discrimination, whistleblowing and the like. Employees subjected to discipline are quick to cite these laws and the thicket of rules that has grown up around them. Managers who do not negotiate the thicket carefully can find themselves the victims of adverse action.
Less clearly defined are the rights of managers. And these rights, as they have emerged in rules and adjudication, were among the key subjects covered at a two-day session cosponsored by Government Executive at the Brookings Institution in downtown Washington.
Rudman, a 26-year veteran of federal service who now is a practicing attorney specializing in federal employment law, was the principal instructor for the course. During his government career at the Customs Service, the Defense Department and elsewhere, Rudman had extensive experience with discipline and performance issues, both as a subject and an instigator of investigations. Rudman's expertise has been tapped by Government Executive, which has published several articles he has written during the last four years. The latest was on the subject of the perils of pre-selection of new employees.
Newton is senior legal adviser for the Office of Legal Counsel in the Executive Office of the U.S. Attorneys. He provides advice on employee issues to the Justice Department's U.S. attorneys.
During the course, Rudman and Newton presented a "bill of rights" for federal managers:
- You are largely immune for your actions as a federal manager.
- You have the right to ask for and receive explanations.
- You have the right to review files including computer files.
- You have the right to meet with an employee without being tape recorded.
- You have the right to meet with an employee without his/her attorney present.
- You have a right to search the workplace based on a reasonable suspicion that the search will turn up evidence of work-related misconduct.
- You have the right to order someone to do or not to do anything that is not illegal nor would subject the employee to loss of life or limb. These orders may be oral, written or by e-mail.
- You have the right to stop threatening, disruptive or disrespectful speech or conduct.
- You have the right to discipline an employee.
- You have the right to cancel leave.
- You have the right to control travel.
- You have the right to reassign an employee to a different location or position at the same grade and pay, even if it requires relocation.