The problem is not so much the system, but how it is applied.
A recent article in The Washington Post listed the top five reasons why federal managers fail to fire their low performers. Citing a guide published by the Merit Systems Protection Board, the article states: “Managers have a lot of power to take action against employees and supervisors because of misconduct or poor work. But they don’t use it.” I wholeheartedly agree.
The guide contains survey data that is quite revealing about both the understanding and attitudes of federal managers with respect to the removal process. Quite frankly, it indicates that they do not understand it as well as they should, and even more troubling, many are not prepared to do the right thing and terminate a poor employee when it is appropriate.
Let’s examine why.
The probationary period. The one-year probationary period for new employees is intended to be the final step of the selection process and provides managers with a relatively easy vehicle to terminate poor employees. However, the guide states: “The data indicates that during the probationary period, when individuals can be removed easily, supervisors are reluctant to separate those who are not a good fit for the job. In other words, how the rules are used determines the outcome, and in the case of the probationary period for new employees, those rules are often unused by management officials.”
The problem is not so much the system as it is the application of it.
The standard of proof. An adverse action (removal, demotion or suspension of more than 14 days) under 5 USC Chapter 75, requires managers to prove their case by a preponderance of the evidence. That means that at least 51 percent of the evidence should support the manager’s position — not a particularly difficult standard to meet. However, when surveyed by MSPB, the vast majority of respondents said they used a standard of “beyond a reasonable doubt,” which is a much tougher standard and is typically reserved for criminal cases.
Government has done a poor job of teaching its supervisors the basic fundamentals of the system it uses to terminate poor employees.
The length of the removal process. In most cases under Title 5, an employee must be given 30 days’ notice from the date of removal. MSPB found that almost one-fifth of removal actions took over six months while only 23 percent occurred in 35 days or less, indicating that the length of time to remove an employee is more a function of the agency decision-makers than the law itself. That is true, but only to some extent.
While many of these actions could have been decided more quickly, the bigger issue is the time it takes to remove an employee from the date the agency first realizes the employee is a problem until the date it actually removes him. That is an entirely different story because in many cases, it takes years to go through counseling, admonishments, reprimands and suspensions before the employee finally is removed. In the meantime, the employees often tie their agency up in knots by exercising their right to file grievances and EEO complaints.
The period to reply to a proposed removal. By law, employees are entitled to a minimum of seven days to reply to a proposed removal. In many cases, labor agreements extend this period.
MSPB found that “half of the removal action deciding officials reported that they provided an extension . . . nearly two-thirds of those extensions were for an additional 15 days or more. These extensions of more than two additional weeks, when added to the initial period to reply, most likely delayed the agency’s ability to effectuate the action immediately upon the expiration of the 30-day waiting period.”
This issue, however, is totally within the control of management, and in many cases it builds goodwill with unions when agency officials are willing to be somewhat flexible.
Perceptions regarding employee rights. Based on the responses received, MSPB concluded: “It is interesting that the officials most responsible for ensuring that the agency provides a meaningful opportunity to respond to the charges — and who would be required to defend the action to a third party — tended not to strongly object to the level of rights given to the individuals that they removed.”
Mid-level managers who have to deal with problem employees on a day-to-day basis might disagree with that statement. Their frequent complaint is that upper management does not support them when they try to take action. This, in effect, discourages managers from taking action.
Stewart Liff is a fellow with The Performance Institute, specializing in human resources management, visual performance management and team development. He is the author of multiple books, including Managing Government Employees and A Team of Leaders.