A Use-or-Lose Holiday Gift from MSPB

By William Wiley, January 3, 2017

It’s that time of year: taking it easy, eating waaaay too much sugar, giving gifts. Even MSPB is not beneath recognizing the holiday spirit with a little gift of its own to all of us in the world of federal sector employment law.

Sometimes MSPB presents are not particularly desirable, like the crazy disparate-penalty approach to comparative penalties and the dark-road of diminished respect for prior acts of discipline when it comes to selecting an eventual removal. Those are some gifts we’d return if we could, but even Nordstrom’s won’t take back that stuff.

This year as the holidays approached, the Board’s insightful and productive Office of Policy and Evaluation (OPE) bestowed on us all a gift that hopefully will provide some needed insight for the new administration as it develops it plans for draining the civil service swamp. As do many on Capitol Hill, the incoming President has spoken loudly about the need for more accountability in government, for federal agencies to be run more like businesses than as governmental agencies. Well, that all feels good in the gut and sounds powerful out there on the campaign trail. However, here at FELTG we prefer data and information rather than feelings and campaign speeches. Fortunately, our end-of-year present from MSPB’s OPE is just the sort of meat we all need to chew on as decisions are being made about a “new” civil service.

In mid-December, MSPB issued a report entitled “Addressing Misconduct in the Federal Civil Service: Management Perspectives; Supervisors Report the Greatest Barriers to Addressing Employee Misconduct Come from Within Agencies.” Given that there’s a wide-spread belief that agencies don’t fire enough bad employees, it would be helpful to have some data about why that might be. Well, happy New Year to us: OPE’s research provides all those policy-makers to-be in the White House and on the Hill just that sort of information:

• Finding: About half of all proposed removals result in the employee leaving voluntarily. This is great news for agency officials. Although we must put cases together in preparation for an eventual challenge in an appeal, the reality is that it is unusual for us to actually have to defend a removal before MSPB. To this half of proposed removals that are never consummated because the employee quits, our FELTG experience would add to it a large group of employees who are indeed terminated, but who never file an appeal (old OPM numbers estimate that at about half of all removals), 60% who settle without a hearing after filing an appeal, and another group of employees who are poor performers who are PIPed. Our experience is that 50-60% of those employees leave voluntarily before removal is even proposed, sometimes within days of the PIP being initiated. Bottom Line: Although we always need to be prepared to defend a removal on appeal, maybe one in ten removal actions that get started actually make it to review by MSPB.

• Finding: Fewer than half of first-line supervisors said they were confident they would be allowed to replace an employee fired for misconduct. Interestingly, 60-70% of managers and executives believe that replacement employees will be approved if an employee is removed for misconduct. It’s a bit unclear whether these managers and executives are referring to their ability to replace their own subordinates who are fired for misconduct, or to the ability of all supervisors to replace fired subordinates. Perhaps the new administration should give consideration to this back-fill dilemma when it starts trying to drain the civil service swamp. If you can accept that supervisors are hesitant to get rid of bad performers now because of this fear of not being able to replace them, just think how hesitant they will be to fire bad employees with a hiring freeze in place. A poor performer often is seen as better than no performer. Bottom Line: Check with upper management before you initiate a removal if you are concerned about the ability to back-fill once the employee is gone.

• Finding: The greatest perceived barrier to a front-line supervisor initiating a removal is the agency’s perceived culture against firing bad employees. This is another official finding that parallels what we here at FELTG have run into when we teach accountability. “Upper management at this place doesn’t want us to remove employees. Human resources and legal are afraid of discrimination complaints, claims of whistleblower reprisal and the dreaded OSC, the union and it’s unfair labor practice charges and grievances, etc.” Supervisors feeling that they would not be supported by senior management and their discipline advisors was the Number One reported reason that bad employees are kept on the payroll when they should be terminated. Bottom Line: Hey, you managers and advisors out there. Do your damned jobs. Change the culture; not into one where everybody gets fired, but one in which everyone gets held accountable. With fairness and gusto.

• Finding: The second greatest barrier to firing bad employees was the low quality of service provided by the human resources office. Woo, doggies. You regular readers know how we feel about that here at good old FELTG. We have howled against the moon for 15 years about the low quality of service provided by some human resources offices around the government. Too many employment law practitioners don’t know the basics of our system, and worst of all, don’t know what they don’t know. Not only do they not know what to do, they sit in their offices and hope that no one asks them for advice so that they can focus on other things, like lunch. If you are a human resources employment law professional, and you want to know if you are a good service provider, simply ask yourself three questions. During 2016, did you:

1. Attend any FELTG training?
2. Call any supervisors and ask, “Do you have any bad employees I can help you fire today?”
3. Read every issue of the FELTG Newsletter?

Bottom Line: Two yes’s out of three questions, we will consider you part of our family and a decent service provider.  Three out of three, we are honored that you move among us. Free coffee at all of our seminars for you.

This OPE gift is a wonderful holiday present. We encourage you to read it in detail because it is just full of gems of wisdom beyond the ones we’ve highlighted here: http://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=1363799&version=1369157&application=ACROBAT. If you run into any newly-minted Trumpettes as the new administration unfolds, maybe be sure they get a copy of it, as well.

Easier still, here is language that if it were embodied in a single email from your agency’s new Presidential appointee could change the course of civil service history. FELTG copyright hereby released should you choose to use it:

To all front-line supervisors, managers, executives, human resources specialists, and legal advisors:

From today forward, ours will be an agency built on employee accountability. If there are employees at this agency who are non-performers or who do not obey our rules, they should be disciplined and removed from service, promptly and fairly, if they do not improve their behavior. If a supervisor removes an employee for misconduct or performance, I personally guarantee that suervisor will be able to replace that employee. All agency discipline and performance advisors will be trained and continually evaluated by the professionals at FELTG to ensure the adequacy of the service they provide and the possession of the knowledge necessary to hold civil servants accountable.

FELTG. Always thinking ahead of the civil service curve. Wiley@FELTG.com