OPM’s Guidance on Firing Bad Employees Will Remind You That It’s Complicated

The Office of Personnel Management on Wednesday reminded federal managers that they have several tools at their disposal to discipline poor performers or employees engaged in misconduct.

OPM released 22-page guidance -- not intended to be “comprehensive” -- outlining the various disciplinary procedures for Title 5 employees, depending on whether the issue is performance-related, or a result of misconduct. The guidance walks agencies through the proper steps, including notification and documentation, required for suspending, reassigning, demoting and firing employees and members of the Senior Executive Service.  

“Maximizing employee performance and addressing misconduct, when appropriate, is a critical responsibility of managers and supervisors,” wrote acting OPM Director Beth Cobert in an accompanying memorandum. “If the available management tools are used appropriately and when needed, managers and supervisors have an opportunity to deter future performance or misconduct challenges, and employees have an opportunity to improve their performance or correct their behavior, all of which will benefit the agency.”

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The OPM guidance, as government documents go, is pretty informative and jargon-free. But the guidance, which outlines an extensive process for many disciplinary actions, also is a reminder that the process for removing employees is rigorous and often lengthy. Managers need to know their options, but they also have to precisely follow proper procedure. Here’s a sample from the guidance on dealing with employees on removal options during the probationary period. Even that process has multiple moving parts, as described by OPM:

Employees may be terminated from employment during the probationary period for pre-employment reasons or for unacceptable performance or conduct. When removal is based on pre-employment issues, the employee is given advance notice, an opportunity to provide an explanation of the events related to pre-employment issues and an agency decision. When the basis for termination is unacceptable performance or conduct, advance notice of the intent to terminate is not required. However, the employee must be informed in writing of the reason for the summary termination. In either case, probationary employees have limited appeal rights, and also have Equal Employment Opportunity rights to challenge an action that is believed to have been taken for a discriminatory reason. An employee may also seek corrective action with the U.S. Office of Special Counsel if he or she believes the action was taken because of a prohibited personnel practice.

Still, the probationary period is the optimal time to deal with challenging employees and “avoid long-term problems,” OPM said. It’s a mechanism that managers often underutilize. “OPM agrees automated and timely notifications to supervisors can be a useful tool for agencies regarding probationary periods and should be used to the extent they are appropriate and available,” the guidance stated. The human resources systems used by federal shared service centers have this feature, but it’s up to agencies to use it.

The disciplinary process for performance problems is slightly different from the one used for those accused of misconduct. There also are different rules, steps and appeal rights to the Merit Systems Protection Board depending on an employee’s probationary status, whether she is a member of the Senior Executive Service, or whether she is being disciplined for poor performance or misconduct. OPM outlined the requirements for initiating an adverse action for performance issues or misconduct under Chapter 43 and Chapter 75. While Chapter 75 is generally considered the “more streamlined approach,” it might not be the best approach, depending on the “facts of each case and the nature and strength of your evidence,” OPM noted.

OPM counseled agencies to take preventive actions to avoid performance problems or conduct issues before they happen. Among the best practices: clearly communicating performance standards and expectations to employees; providing regular feedback; and rewarding good performance, informally and formally. The agency also recommended maintaining “effective lines of communication” with their department’s human resources and legal offices.

The guidance on dealing with poor performers or employees involved in misconduct is part of the agency’s “series of instructive materials” to help agencies better manage their workforces, Cobert said.

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