Agencies avoid flexibilities in firing poor performers

When the Civil Service Reform Act was passed in 1978, one of its main selling points was that it would give federal managers greater flexibility to fire poor performers.

But 31 years later, most agencies are avoiding the statutory authority created by the law, according to a new study by the Merit Systems Protection Board, which reviews employee appeals of disciplinary actions.

MSPB researchers, who consulted data from the Office of Personnel Management's Central Personnel Data File and surveyed 1,817 federal officials, concluded that correcting poor performance is a management issue, not a statutory issue.

The difficulty of firing poor performers is a serious concern for the federal government, according to MSPB. But the recent survey found that the problem isn't due to inadequacies in personnel law, but rather a lack of commitment to long-term performance management and employee reviews. "It appears that many barriers are not caused by regulations or the statute, but rather are inherent to performance management," the study states. "The subjective nature of assessing performance, the challenges in creating standards for different positions, the uncomfortable nature of telling someone you are displeased with his or her performance -- these are things that cannot be changed by statute, they simply exist."

Procedures for removing or demoting poor performers initially were set out in Chapter 75 of the U.S. Code's Title V. It states that in an employee appeal to MSPB, managers must be able to provide proof that a dismissal was the correct action. But critics argued the burden of proof was too high. When the Civil Service Reform Act was passed, it included Chapter 43, which requires managers to prove only that a dismissal was reasonable and based on "substantial evidence."

Agencies can use either option -- Chapter 43 or Chapter 75 -- for a personnel action.

Rather than simply a disciplinary statute, Chapter 43 was envisioned as a tool to improve employee performance. It requires supervisors to draw up a performance improvement plan for deficient employees. If performance doesn't improve under the plan, management can decide to fire the employee.

Despite this flexibility, most agencies continue to follow the more rigid statute as a guide for employee dismissals, according to the study. Between fiscal 1998 and 2007, 38 percent of firings based on poor performance were under the more flexible Chapter 43 or an equivalent authority, while 62 percent invoked Chapter 75.

Recently, more managers have been taking advantage of Chapter 43, which the study said could be due to a workforce shift toward more technical and professional jobs. According to the study's data, people in those positions are more likely to be removed through Chapter 43, than those in wage-grade positions -- perhaps because it is easier to track their work, the study suggests.

"The level at which the burden of proof was set is not the problem with addressing poor performers, nor is it the solution," the study concludes, adding that the problem is more likely a lack of performance management and managers who are willing to make tough decisions about their employees.

In anonymous interviews with federal managers, the study found they preferred the lower burden of proof associated with Chapter 43. But it requires supervisors to be more involved in an employee's performance progress, and the drawbacks include technicalities and paperwork. Supervisors are less likely to follow up with a disciplinary action under Chapter 43 once they learn the amount of work it involves, the study said.

John Palguta, vice president for policy at the Partnership for Public Service and a former executive at the MSPB, said he mostly agreed with the findings.

"We have a long tradition, in government agencies, of promoting managers who are good at doing the work of the agency, but are average or mediocre at best at managing people," Palguta said.

The report recommends that agencies, human resources departments and supervisors take a more proactive approach to performance management. That includes making sure supervisors are skilled at dealing with their employees, HR staff provides guidance to managers and agencies create performance measures so employees and supervisors know what is expected of them.