Performance Expectations – Getting Performance Plans Right

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By Barbara Haga, October 20, 2021

Last week, I taught two performance classes and have been working on a description of a two-part webinar series that will take place in the spring on the idea of setting expectations for both performance and conduct and using available tools to build in accountability in both aspects of employee management.

Let’s talk about performance standards – not so much in terms of case law and regulations, but from a more practical standpoint. When trying to build accountability in performance, the performance plan must measure what is important and do so in a clear, understandable, and reasonable way. Discussing some of my favorite points might be worthwhile.

Measuring results

I am sure most of you have heard this phrase before. We need to measure results. But what does that mean in a practical sense? I believe it means we should be focusing on outcomes – papers written, briefing delivered, meetings participated in, reports prepared, and claims processed – AND what those things meant to the organization.

When thinking about results, let’s look at a couple of things in the list. What did that delivered briefing do? Did it help citizens understand how to tap into government services?  Did it mean that managers were up to date on recent changes in case law? Did it mean that organizations were on notice of pending IT changes that would protect systems from cyber criminals?

What about processing the claims? Were travelers promptly reimbursed? Were questionable credit card transactions identified in a timely manner and appropriate follow-up action initiated? Were injured workers paid compensation within a reasonable period after their continuation-of-pay?

I’ve spoken about attending meetings quite a bit in recent training, because I have seen it in a lot of narratives for high grade positions justifying ratings above fully successful. The narrative is responding to a standard that says something about representing the organization in biweekly meetings.  The narrative sometimes just repeats that – the employee represented the organization in these meetings. So, are we measuring butts in chairs, or should the measure be about contributing something in those meetings? Perhaps the person delivers briefings in these meetings or leads a discussion on an important initiative in the meeting or steps up to lead a workgroup to report back at the next meeting.

Perhaps the employee prepares written notes from the meeting that are circulated to other members of the unit. It seems to me that if a measure is part of a critical element, there should be something more there than taking up a seat.

Complete work

I see a lot of performance standards that stop too soon.  I believe a lot of this comes from guidance about writing measures with numbers in them (and that is just guidance, neither the Federal Circuit nor the MSPB in their decisions interpreting Chapter 43 said you had to have numbers in standards.) Because managers are sometimes uncomfortable with subjective judgments, I see standards that say, “Complete XX of things (reports, documents, transactions, etc.) on time.”

Shouldn’t those things be complete, accurate, and apply up-to-date guidance? Shouldn’t the supervisor be able to hold the employee accountable for effective oral or written communication?

Here’s an example of a standard that I believe stopped too soon – Perform document system integrity checks weekly, monthly, quarterly, annually.

I’d be willing to bet that was copied word for word from the position description. But the purpose of the position description is to assign the work. The purpose of the performance standard is to set what fully successful performance looks like. Should the integrity check be thorough?  Complete? Conducted in accordance with current guidelines? Results communicated to appropriate officials in a timely manner? Those are the measures that need to be in the performance standards.

Standards written at grade

I see performance requirements all too often that are written at a lower level than what they should be for the grade assigned to the job. It could be that management is just not asking for what they could/should require, or it may be that there is a poor performer in the job that the supervisor is allowing to perform below grade. Neither of those are line with this idea of accountability.

If you go to the Classifier’s Handbook, you will find descriptions of the various factors and how they fit with grade structure. (I’m reaching WAY back to my classification days, but sometimes it’s necessary!)  Factor 2-4 is listed as the typical level of supervisory controls one would find in either a professional or administrative GS-13 position (see pp. 14-15). Here’s a sample description for level 2-4:

  • The supervisor sets the overall objectives and resources available. The employee and supervisor, in consultation, develop deadlines, projects, and work to be done.
  • The employee, having developed expertise in the line of work, is responsible for planning and carrying out the assignment, resolving most of the conflicts that arise, coordinating the work with others as necessary, and interpreting policy on own initiative in terms of established objectives. In some assignments, the employee also determines the approach to be taken and the methodology to be used. The employee keeps the supervisor informed of progress and potentially controversial matters.
  • Completed work is reviewed only from an overall standpoint in terms of feasibility, compatibility with other work, or effectiveness in meeting requirements or expected results. (My italics)

When I see GS-13 standards that talk about detailed review of every document (documents have less than two errors 90 percent of the time), something is wrong.  Standards that indicate that GS-13s escalate what the employee determines to be “complex” matters to higher level officials without any requirement for them to do any background work or make recommendations don’t seem to line up very well with what a GS-13 should be doing.

Establishing Conduct Expectations: A Sample Policy Part II

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By Barbara Haga, September 14, 2021

This month, we tackle a few other aspects of the work and conduct expectations that I began in last month’s article, in which I tackled work schedules, attendance and other related matters.

INTERNAL WORK REQUIREMENTS.  The following standards relate to how work gets done within our organization.

Standards for Work Assignments:

Due Dates: Certain assignments have specific due dates. Sometimes these are recurring items which have due dates such as monthly reports. In addition, various actions and projects will have due dates which may be either immediate or months in advance. Employees are expected to comply with due dates unless an extension has been given for good cause. If there are problems meeting a deadline, you are expected to notify your supervisor sufficiently in advance for alternative arrangements to be implemented to meet the deadline.

Priorities. Depending on the grade of your position, you may be responsible for setting work priorities or that information may come from your supervisor. You are expected to ensure that work is appropriately prioritized within guidelines and to raise issues regarding any competing priorities with your supervisor in advance to ensure timely completion.

Compliance with Directives. In some cases, work assignments are made with specific instructions or directives that explain how the work will be performed. Employees are expected to follow such protocols, directives, or procedures where they have been provided. This is not intended to limit opportunities for improving procedures or adapting to new conditions, but instead to ensure that supervisors are made aware of proposed adjustments in advance.

Files and Records: Any files or records that you develop in the course of your work are the property of the agency.

Sharing Information within the Unit: Staff meetings provide an opportunity for sharing information regarding our organization and our work and are a key ingredient to ensure that everyone on the team is aware of developments and changes that affect us.

Regular attendance at staff meetings is expected. In the event that there is a conflict with another meeting or work commitment, you are expected to notify your supervisor to discuss the conflict prior to the day of the staff meeting.

During staff meetings, you are expected to fully participate and to contribute to the information-sharing within the group. You should prepare as necessary to be ready to engage fully in discussions and to contribute well-thought-out suggestions.

(If status reports are required, include information on due dates/content here). Status reports ensure that your supervisor has up to date information on key parts of each employee’s work that then enables the supervisor to respond when issues arise from senior officials and customers.

Communications:

E-mail: If you receive an e-mail requesting information or assistance, you are expected to respond within one business day of receipt. If you are not able to satisfy the request within one day, you will acknowledge the request and include an estimate of when you will be able to satisfy the request.

If you are going to be out of the office, you will utilize the auto-reply on your e-mail to alert others to the fact that you will be out for a specific period of time. Your auto-reply message is also to provide an alternate point of contact(s) who is providing coverage in your absence.

Telephone:  If you receive a phone call requesting information or assistance, you are expected to respond within one business day of receipt.  If you are not able to satisfy the request within one day, you will return the call and provide the caller an estimate of when you will be able to satisfy the request.

If you are going to be out of the office, you will change your greeting to alert others to the fact that you will be out for a specific period of time.  Your message is to include an alternate point of contact(s) who is providing coverage in your absence.

Personal Telephone Calls and E-mails. Work time is to be spent performing work activities. Reasonable time for short check-in calls with family or making calls or sending e-mails for personal business that cannot be accomplished outside of work hours are permitted.

Required Training.  Employees whose jobs have specific training requirements are expected to complete such training by any established deadline.  Training may range from annual IT Security or Ethics Training to continuing education requirements for certain position. Once notified of a due date for training it comes your responsibility to ensure that you comply.  Multiple reminders should not be expected. Failure to complete required training on time is grounds for disciplinary action.

Licenses and Certifications. Some jobs include requirements for licenses and certifications.  It is incumbent on you to ensure that any continuing education is completed in a timely manner and that any administrative requirements to maintain such a license, certification, or membership are met.  Failure to meet these conditions of employment may be grounds for removal.

ON AND OFF-DUTY BEHAVIOR. Federal employees are accountable for behavior both on and off-duty. Off-duty behavior may be a basis for employment action if there is a connection between the behavior and the position.

Off-duty behavior such as egregious sexual misconduct may be grounds for dismissal.  Other types of specific off-duty misconduct could impart an employee in a particular type of position or job; for example, an employee whose job requires a license to drive who loses that license because of a DUI conviction may be removed because he/she doesn’t meet a condition of holding the job. Similarly, an attorney who loses membership in the bar would no longer qualify for that position.

Certain jobs may have more stringent requirements than others.  Police and investigator positions, for example, are generally held to higher standards since it is their responsibility to enforce laws, testify in legal proceedings, etc.  Jobs that are designated as highly sensitive or those who which require security clearances may be held to stricter rules regarding off-duty issues such as indebtedness. Supervisory jobs are also held to a higher standard.

Establishing Conduct Expectations: A Sample Policy

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By Barbara Haga, August 18, 2021

After the last column was published, I heard from a practitioner from one of those agencies that didn’t have a lot of written guidance on conduct issues.  She was asking if I had a sample of such a set of expectations. I didn’t have a sample, but I have seen bits and pieces in various agency documents that I thought would be helpful. So, I decided to take a stab at putting a policy together.

I have started with work schedules, attendance, and related matters. Next month, I will work on other discipline-related topics. If you have some suggested topics or language you’ve developed, please feel free to e-mail me.

WORK AND CONDUCT EXPECTATIONS

This memorandum sets forth expectations regarding work behaviors and general procedures employees are expected to follow in our workplace. Establishing clear expectations is intended to ensure that employees are aware of basic requirements regarding attendance and work practices and also to ensure that consistent practices are followed throughout the organization.  Meeting these expectations will facilitate effective, timely, and accurate work outcomes which are the key to meeting our mission.

ATTENDANCE AND REPORTING. Employees are to be dependable and prepared to fulfill work requirements during scheduled duty hours, whether working on government premises or at an alternate worksite.

WORK SCHEDULES. Work schedules are set based on the needs of the organization. That doesn’t mean that employee preferences are not taken into account, but ultimately such decisions rest on the when the customers need our services, when organizations we typically deal with are open, and other factors that impact when our work needs to be performed.

The work schedules that are authorized include (fill in options here). Details on use of these schedules can be found here (insert link).

In the event that an employee wishes to request a change in work schedule, requests must be submitted to the supervisor in writing (in advance, or a set time frame in advance.)  Supervisors will respond to requests for schedule changes as soon as possible.

WORK LOCATION. Telework is authorized in the same manner as schedules are set.  The ability to work remotely depends on when and where our services are needed, what types of interactions must take place and how these can be effectively accomplished, the need for sharing information and coordination among work team members, and other similar factors.  We will consider employee preferences, but the demands of the work are always key in such determinations.

Telework is authorized (fill in options). Details on our telework policy are located here (insert link).

LUNCH PERIOD.  Daily work schedules include a ______ minute lunch period. The lunch period is a non-work period. Shifts without lunch periods are generally not authorized, meaning employees may not skip lunch and end their shifts earlier.

BREAKS. Formal breaks are not authorized. Employees are free to take reasonable short breaks to get a beverage or to take a restroom break.  Smoking breaks are authorized……  (Fill in if you have such a policy).

LEAVE SCHEDULING. Employees request leave from their immediate supervisors. Leave requests may be submitted by e-mail, in the timekeeping system, or by telephone (adjust this to fit your requirements). If requesting leave by telephone, the employee should speak to the supervisor directly. If the supervisor is not available, the employee should leave a message with a telephone number where he or she can be reached to be advised whether the leave has been approved. Procedures and time frames for various types of leave requests are outlined in the following paragraphs.  Failure to comply with the procedures may result in the leave not being approved.

Annual Leave.  Employee requests for annual leave are to be submitted in advance.  (Union contracts and leave policies may provide specifics regarding dates by which leave periods must be scheduled.)  Approval of annual leave is dependent on mission requirements.   In the rare event that previously approved leave must cancelled, employees are expected to cooperate in rescheduling.

Sick Leave. Employees are entitled to utilize sick leave for the six authorized uses contained in 5 CFR 630.401. (A reference to a directive or language in a union contract that lists the uses would be more informative). Employee requests for sick leave for anticipated absences such as planned surgery or scheduled treatment should be submitted in advance.  (Your policy may ask for a week or ten days’ notice, for example.) Certain sick leave uses and sick leave over three consecutive days may require written documentation. Details on sick leave usage requirements are found here. (insert link)

Emergency Annual and Sick Leave. The need for leave for annual leave emergencies, such as a car breaking down on the way to work or a plumbing emergency in the home, is to be reported to the supervisor within ____ hours of the beginning of the work shift. The same time frame applies for short notice sick leave requests for unexpected illnesses or medical appointments. As noted above, documentation may be required before leave can be finally approved. Supervisors will advise employees whether the emergency leave is approved as soon as possible.

Other Leave Types.  There are a variety of types of leave for special circumstances such as court leave, leave without pay, Family and Medical Leave, etc. Information on these types of leave can be found at (insert link).

TIMEKEEPING SYSTEM. Employees must maintain accurate information about their work status in the timekeeping system. While timecards are approved biweekly, the best practice is to ensure that the information is input each day. This minimizes problems with omitting leave use or a late arrival from earlier in the pay period and also helps supervisors fill in information if an employee is unexpectedly out and not able to complete the timecard by the deadline.

It is the employee’s responsibility to ensure that leave is accurately input, including any special coding necessary for certain kinds of leave. For example, if you are using Family Care Sick Leave you must identify in the dropdown menu which category of leave you are using (customize this to the specifics of your leave system). If an employee is unsure about how to properly code an absence, it is his or her responsibility to do the necessary research or reach out to the appropriate timekeeping personnel to verify how to properly complete the entry.

MAINTAINING UP-TO-DATE CONTACT INFORMATION. Employees must provide contact information including addresses and telephone numbers and personal e-mail addresses to ensure that, should it be necessary to reach employees outside of work hours, this may be accomplished.

Providing contact information also extends to an employee’s location while on leave for potential recall should that become necessary in the event of an emergency.

 

Position Descriptions and Performance Plans – Part 3

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By Barbara Haga, July 21, 2021

Over the past two columns, we reviewed what position descriptions should cover to give you maximum ability to determine qualifications, establish accountability, and to hire well. We also looked at crafting performance standards that effectively build on position requirements. There’s another aspect of establishing accountability that often ties in with the position description. That’s setting conduct requirements. This brings us back to the issue I started with when I began this series.

The idea expressed by a supervisor was that if something wasn’t in the performance plan, she wouldn’t be able to hold the employee accountable for it. If that “something” was how well a particular job function was performed – was it done correctly, in accordance with policy, on time, notifying appropriate team members or customers. etc. – she would have been correct. However, what she had in the standards was a requirement for an accountant to take continuing education courses toward a Financial Management Certification.

There seems to be a myth out there in the world of Federal HR that the performance plan is intended to cover everything that happens between 8 and 4:30 (or whatever your schedule is).  Nothing could be further from the truth.

The performance plan only captures how well the individual performs on those things covered in the critical elements as measured by the performance standards. All other things inevitably fall into the conduct world if things go wrong.  If the individual can’t meet medical standards, we would be looking at a conduct action. If the employee loses his membership in the bar, a performance action wouldn’t make any sense since the employee couldn’t perform the duties to begin with. If the employee misuses a travel card, the remedy will come from the conduct world.

Setting Conduct Standards 

The amazing thing about setting standards regarding conduct is that most of the time employees will comply.  My experience tells me that most people will stay within the lines – if they know where they are. The problem is that sometimes employees aren’t told where those lines are.

In many of my classes, I am teaching HR practitioners and managers from large, unionized agencies. In those agencies there are usually detailed handbooks and policies controlling employment matters, and union contract provisions add additional detail to what is contained in the agency documents.

Sometimes, I am at a small agency where they don’t have that sort of structure. This issue usually comes up quickly in a leave class. Even though I should be ready for it, I am often surprised. It starts like this:

Me:  When employees don’t call in for emergency leave within the allotted time frame, you could disapprove the leave. So, what is the allotted time frame here?

Students: (Blank stares.)

Me: (I think they didn’t understand what I meant.) How long does an employee have to call in for unscheduled annual leave or sick leave here?

Students: (Uncomfortable wiggling in chairs begins. But no response.)

Me: (Maybe an example would help them.)  In many Federal agencies, there is a set time frame like two hours from the start of the shift or one hour prior to the start of the shift for certain jobs.

Students: (Eyes cutting around the room.)

Finally, some brave soul admits they don’t have a policy on this, and they have never told their employees anything. Employees call in when they choose to.

If there are no standards for something like short-notice leave, then I would suspect that employees are not likely to be clear on many other things, such as when Government property can be removed, what happens when employees engage in harassment, and other similar issues.

Not only is that poor management, but it would also make it difficult getting past Douglas Factor number 9, regarding whether the employee knew or should have known that what she was doing was wrong.

Clarifying Expectations

Not everything is something that a supervisor need create.  For example, jobs that require licenses and certificates usually are covered by some type of agency guideline that explains what types of certificates are required for what grades. For example, DoD sets very specific requirements for firefighters and paramedics.

The same thing applies for IT professionals and contracting positions. The policies may also explain what happens when someone fails to get a certificate or license on the first try. Even with these policies in place, it would behoove the supervisor to make clear what happens if there is a failure. There may be a grace period and an opportunity to retest.  But, if an employee fails the retest, then typically the answer is that the individual can’t hold the position. For some jobs where the license is required to be qualified to enter and hold the position, such as a driver’s license or a medical clearance, there likely isn’t a grace period to try to retest. The employee can’t be allowed to perform the duties without the license.

I wrote a series of articles for the FELTG Newsletter in early 2019 on conditions of employment cases. One of the cases I wrote about was a firefighter who was also an EMT. He hid the fact that he had let his EMT certification lapse. The fact that he did not inform management would lead one to believe that he understood the consequences of practicing his level of medicine without a license. Saline v. Army, DE-0752-14-0567-I-1 (2015)(ID).

What other types of things might managers need to explain? What would happen if an employee needed to take government property out of the facility?  What kind of documentation is necessary? What would happen if the proper permissions weren’t obtained, and the individual is caught with that government property?  Is there an agency guideline on this topic that employees are expected to follow?

When could an employee use their personal vehicle for work purposes and how do they pay for gas? This question comes from an actual case. A GS-14 criminal investigator was removed based on credit card misuse because he used his travel card to buy the gas.  Apparently, the agency policy was to apply for mileage reimbursement. There was no allegation that he used the gas for anything other than official business. The proposing and deciding officials testified that they “assumed” that he knew the policy requirement. Needless to say, the Board mitigated the penalty. Johnson v. Treasury, 15 MSPR 731 (1983), aff’d without opinion (Fed. Cir. Jul. 22, 1983).

It’s clear that there are many things with conduct consequences that would warrant explanation by the supervisor, but none of them need to be in the performance plan for the employee to be held accountable.

 

Position Descriptions and Performance Plans – Part II

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By Barbara Haga, June 16, 2021

Last month, we began a discussion of the relationship between position descriptions and performance plans. We talked about the need for a solid foundation and looked at the various types of things position descriptions establish for positions, from physical requirements and medical standards to the necessity of holding a certain license or certificate. In this column, we are going to look at where performance plans and position descriptions should intersect.

General Schedule Positions

Nonsupervisory GS positions classified under the Factor Evaluation System (FES) have basically two parts – the description of the major duties and responsibilities, and the nine FES factors that are common to white collar positions. According to the Classifier’s Handbook, the factors are:

Factor 1 – Knowledge Required by Position

  • Kind or nature of knowledge and skills needed.
  • How the knowledge and skills are used in doing the work.

Factor 2 – Supervisory Controls

  • How the work is assigned.
  • Employee’s responsibility for carrying out the work.
  • How the work is reviewed.

Factor 3 – Guidelines

  • Nature of guidelines for performing the work.
  • Judgment needed to apply the guidelines or develop new guides.

Factor 4 – Complexity

  • Nature of the assignment.
  • Difficulty in identifying what needs to be done.
  • Difficulty and originality involved in performing the work.

Factor 5 – Scope and Effect

  • Purpose of the work.
  • Impact of the work product or service.

Factor 6 – Personal Contacts

  • People and conditions/setting under which contacts are made.

Factor 7 – Purpose of Contacts

  • Reasons for contacts in Factor 6.

Factor 8 – Physical Demands

  • Nature, frequency, and intensity of physical activity.

Factor 9 – Work Environment

  • Risks and discomforts caused by physical surroundings and the safety precautions necessary to avoid accidents or discomfort.

Blue Collar Job Grading

Blue collar or wage jobs are graded using a similar breakdown. These factors are outlined in the Introduction to the Federal Wage System Job Grading System. The four factors are Skill and Knowledge, Responsibility, Physical Effort, and Working Conditions. While fewer in number, they cover most of the same things that the FES factors cover.

Which factors are particularly important for performance accountability? Let’s begin with the first two.

Factor 1 – Knowledge is important, but the performance standards need to talk about how that knowledge is applied. I often see performance plans that just repeat the required knowledge instead of a proper demonstration of what the knowledge would look like. Examples that illustrate this issue for a GS-14 position follow:

Original: Demonstrates understanding of the agency’s mission and priority initiatives and develops and executes strategies to engage constituents.

Modified: Demonstrates an expert understanding of the agency’s mission and priority initiatives and consistently develops and executes well thought-out strategies to proactively engage constituents.

Factor 2 – Supervisory Controls describe the level at which the work is performed, or in other words, how much supervision should be needed. I often discover problems in this regard because the description in the standard clearly requires more than what should be needed for the grade of the position. Sometimes, this is just a case of writing too low. Sometimes, however, this reflects that there is a performance problem.

Let’s go back to the classification standard. Supervisory controls for a job classified at GS-13 (Factor 2-4) should be something like this:

  • The supervisor sets the overall objectives and resources available. The employee and supervisor, in consultation, develop deadlines, projects, and work to be done.
  • The employee, having developed expertise in the line of work, is responsible for planning and carrying out the assignment, resolving most of the conflicts that arise, coordinating the work with others as necessary, and interpreting policy on own initiative in terms of established objectives. In some assignments, the employee also determines the approach to be taken and the methodology to be used. The employee keeps the supervisor informed of progress and potentially controversial matters.
  • Completed work is reviewed only from an overall standpoint in terms of feasibility, compatibility with other work, or effectiveness in meeting requirements or expected results.

Performance standards should align with those levels of control. Here are two examples from a GS-13 position where the expectations didn’t match up very well:

Original a: Responds to general questions, requests for information and inquiries within one business day. Elevates more complex questions to supervisor or other individual responsible within one business day.

What was the problem here?

First, the supervisor didn’t have a way to track whether the inquiries were answered in one business day or not. I suggested the supervisor instead set a written standard of “timely” but in discussion with the employee communicate a general policy that inquiries typically should be responded to in one business day.

I would not recommend trying to create a system to track every single interaction. This supervisor’s situation wasn’t unique. I see this type of measure in performance plans at many agencies but when pressed the supervisors admit that can’t actually tell whether the work is done in one day or five.

The second sentence is also a problem. This is a GS-13. The individual shouldn’t be able to get away with kicking everything that was more complex upstairs as the standard suggests. The employee should do the necessary leg work and provide recommendations if they are performing at grade.

Modified a: Responds to general questions, requests for information and inquiries in a timely manner. Provides clear, accurate and up to date information. Identifies situations requiring higher level intervention in a timely manner and provides complete background information and recommendations as appropriate.

Original b: Prepares correspondence, memoranda, briefing papers, etc., in advance of due dates, clear, accurate, thorough, appropriately written and formatted.

The measures regarding document preparation were fine. The issue related to submitting the documents ahead of deadline caught my eye. I asked about this measure. The supervisor wanted the documents early so there was time to revise them. Apparently, the written work was bad enough that this extra review was routinely needed.

The problem is the standard is written below what Fully Successful should be. Here’s what the rewritten standard looked like:

Modified b: Prepares correspondence, memoranda, briefing papers, etc. by due date. Identifies any issues with deadlines with supervisor sufficiently in advance for alternatives to be effective. Documents are clear, accurate, thorough, appropriately written and formatted.

Position Descriptions and Performance Plans – Part I

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By Barbara Haga, May 19, 2021

If one more supervisor says to me, “If it’s not in the performance plan, I won’t be able to hold the employee accountable for this,” I’m going to scream. There are a lot of things that employees are expected to do or requirements that they are expected to meet that aren’t performance plan matters. Performance plans are likely much more visible to employees and managers because they are reviewed a couple of times each year at a minimum. But position descriptions are the foundation for many human resource decisions, and well-crafted ones can help your organization in many ways.

This month, we are going to look at what position descriptions are supposed to be and how to get that foundation firmly in place. We’ll address how the position description ties in with the performance plans in a future column.

 According to OPM’s FAQs on classification, a position description (PD) is “… a statement of the major duties, responsibilities, and supervisory relationships of a position. In its simplest form, a PD indicates the work to be performed by the position. The purpose of a PD is to document the major duties and responsibilities of a position, not to spell out in detail every possible activity during the workday.” The position description describes not only the major duties and responsibilities, but it also describes the conditions under which that work is performed, such as the when the employee has the latitude to apply judgment to interpret guidelines. It explains what kind of supervisory review is expected.

Up to date and accurate

Having an up-to-date and accurate position description is important. They are not necessarily fun to write, but they are the underpinning for multiple issues supervisors have to deal with. For example:

  • Position descriptions provide information that is used to determine qualifications for the position – knowledge and experience and physical (and sometimes mental) standards that must be met. For example, criminal investigator positions require emotional and mental stability in addition to the requirements for dexterity, vision, and hearing, etc.
  • Position descriptions establish special requirements, such as the need for a security clearance, necessity for holding certain licenses or certifications, extensive travel, significant amounts of overtime, and more. While some of these are not qualifications per se, they are necessary for successful performance in the position.
  • The position description should be the beginning of the selection process. When you are developing questions for the applicant and the references (yes, plan out questions for the current and past supervisors, too) you should be referring to the position description. This isn’t just to ensure you covered the major duties in your questions, but also that you covered how the work got done. Let’s look at your HR Specialist, GS-13 position: What kind of review did your supervisor conduct of your disciplinary letters? Did you have authority to contact your headquarters to obtain an opinion on a complex topic or were you required to raise these issues with your supervisor first? For a reference you might ask, when Mr./Ms. ______ prepared disciplinary letters, what kind of review did you conduct?
  • The position description should be the first step in the interview. Assuming you have an in-person interview, I recommend having the employee read it outside the interview room before you ever begin asking questions. (Please don’t ask them to read it while three people on the panel watch them.) This aids the applicant in understanding what your job is all about, so he provides more responsive answers to your questions. Also, he may have missed some of those special requirements that were mentioned in the job announcement, such as extensive travel, a certain license or certificate, or the ability to walk around the campus on foot to attend meetings. When the applicant sees those in the job description, he may ask questions about that and potentially withdraw if that doesn’t work for him.
  • Employees who occupy positions with physical requirements can be ordered in for physical examinations to determine if they meet the requirement(s) (See 5 CFR 339.203). Physical requirements are set for specific positions. They have to be essential for successful job performance and they must be clearly supported by the actual duties of the position and documented in the position description.  Perhaps you have a group of eight Contract Specialists, GS-12.  Only one of them has to provide service to a group located at a remote site 80 miles away. There’s no reasonable way to get there except to drive, so the individual has to be able to maintain a driver’s license and must also have the capabilities to safely operate a government vehicle. That person could be ordered in for a physical to make sure they could safely perform that function, even though the other seven contract specialists would not be subject to such a requirement.
  • It’s late on Friday, and your friendly HR Specialist left for the day. You’re a manager and you’re not sure if one of your employees is in the bargaining unit. You need to conduct a pre-action interview and you don’t know if you should observe the Weingarten provisions in your contract. Where can you find the information? Normally it’s on the cover sheet of the position description identified as a Bargaining Unit Status (BUS) Code. Or, you just found out about a rush project that needs to be taken care of on Saturday. You offered one of your employees compensatory time if she would come in on Saturday and take care of it, but she declined. Now you’re trying to figure out whether you can require that employee to work extra hours for comp time.  But, you need to know if the employee is Exempt or Non-Exempt to make that decision. That’s conveniently included on the position description cover sheet, too. These decisions depend on what kind of job it is, the authority it has, the controls it operates under, etc.

I could go on, but I think you can see that there are myriad things that position descriptions accomplish. I’m not exaggerating about that being the foundation.  We all know what happens when you have a faulty foundation

Director of EE Oh No: When HR Practitioners Fail to Perform Part III

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By Barbara Haga, April 20, 2021

This third column will focus on how discipline might fit with the situation described first in the February column.

Just a quick recap: An IG investigation resulting from an OSC complaint found that the head of the EO Office at an Air Force Base had “… actively discouraged employees from filing EEO complaints, improperly modified and rejected EEO complaints and allegations, provided false and misleading information about the EEO process, and failed to identify conflicts of interest by management during the EEO mediation process.”

As a result of the OSC action, the Air Force reassigned the EO Officer to another office with no involvement and influence over EEO filings and issued a Letter of Counseling.

Let’s look at performance errors handled through conduct procedures.

Performance Errors and Conduct

As noted last month, there is nothing mentioned in any of the documents posted on the OSC website that indicated the EO Officer gave this bad advice for some nefarious reason or received any benefit from doing so. I read the report to say that the person believed that her actions were proper. She was wrong. These are terrible errors. When there are performance errors, we might think of performance procedures as the proper remedy. However, sometimes a performance approach doesn’t make sense. The risk of allowing the person to continue to perform the work after discovery of such errors in my mind is unacceptable.

Performance errors don’t have to be intentional to be actionable under conduct procedures.  Negligence and failure to follow procedures are types of charges that might be used when performance errors are so serious that the agency would find a performance opportunity period intolerable. I wrote a series of columns on this topic in September, October, and November 2017.

752 Cases and Performance Errors

The cases I discussed in the prior columns dealt with actions that, for the most part, threatened people’s safety and well-being. All resulted in removals. One was a paramedic who failed to check the drug box to make sure it was properly filled and secured before departing for the day.  Unfortunately, later that day, she needed a drug that should have been usable but wasn’t there. Providence intervened because another truck had responded to the call and their drug box was intact so the drug could be administered to the patient. In this case the paramedic had prior discipline for failure to follow procedures. Publicover v. Navy, DC-0752-15- 0003-I-1 (2016) (ID).

A second case involved a VA technician who did not properly sterilize instruments even after being recently counseled about proper procedures. The problem here should be obvious to all – the danger of infection through use of dirty instruments. The instruments that were not properly sterilized made it all the way into an operating room before they were discovered. The VA had to discard $1,000 worth of supplies that had been exposed to the dirty instruments, and there was a delay in being able to perform the surgery.

The Board decision includes an interesting discussion of remorse and potential for rehabilitation in this type of circumstance. Mr. Williams was very sorry, but that didn’t convince the Board to allow the AJ’s mitigation to stand. Williams v. VA, 94 FMSR 5623 (1994), affirmed without opinion Fed. Cir. October 18, 1995.

In Hunter v. Navy, DC-0752-11-0325-I-1, (2011) (ID), a police officer was removed for failure to follow procedures related to responding to a call. He was not dispatched to respond to the scene and the situation was not an emergency (high probability of death or serious injury) under their procedures. Hunter responded using lights and sirens, which was also against established procedures. In the process, his vehicle was involved in an accident and totaled.

Negligence and Similar Charges

Negligence is a subset of poor performance. Negligence in performance of official duties is a failure to exercise the degree of care required under the particular circumstances, which a person of ordinary prudence in the same situation and with equal experience would not omit. Board decisions tell us that where an act of carelessness or negligence results, or could result, in serious injury, a more severe penalty may be warranted.

Similarly, charges of failure to follow established procedures or careless workmanship could also result in severe penalties. Many actions that Federal employees perform from law enforcement work to medical treatment have horrible consequences if not performed correctly. But what about jobs that have legal responsibilities?

What happens when an employee fails to follow a law that applies to her assignment?  What if the person has the proper training but still fails to uphold the provisions of that law? What would happen if a contracting officer failed to follow contract law in awarding a contract?  What if an NLRB employee failed to enforce labor law in a case involving a private sector company or an FLRA employee failed to enforce 5 USC 71 in a Federal agency case?  What if a budget officer violated appropriations law in approving use of funds? Assuming we could prove that the law was violated, I think that most of us would come to the conclusion that there would be serious consequences.  

According to the OSC press release, this Air Force EO Officer was found to have “… improperly and unlawfully handled complaints involving sexual harassment and discrimination.”

Does such a finding warrant disciplinary action? I believe an argument could be made that it does. When I first read an article about this case, I thought I was reading about an actual removal not a reassignment. I certainly didn’t expect to read about issuance of a letter of counseling.  What purpose did that serve? If the person was no longer in the position and had no involvement in EEO work, how could she repeat the infraction?

There are cases where an HR official has been disciplined when that individual failed to carry out responsibilities properly. There are several OSC cases where HR officials violated veterans’ preference and were disciplined.  A GSA GS-15 HR director was removed for fabricating three discontinued service retirements Hathaway v GSA, DA-0752-92-0689-I-1, (1993). The answer this time, however, was different. C’est la vie.

Director of EEO Oh No! When HR Practitioners Fail to Perform Part II

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By Barbara Haga, March 16, 2021

This month, I’m going to focus on how an agency might deal with the situation described in last month’s column.

Just a quick recap: An IG investigation resulting from an OSC complaint found that the head of the EO Office at an Air Force Base had “ … actively discouraged employees from filing EEO complaints, improperly modified and rejected EEO complaints and allegations, provided false and misleading information about the EEO process, and failed to identify conflicts of interest by management during the EEO mediation process.”

The Air Force reassigned the EO Officer to another office with no involvement and influence over EEO filings and issued a Letter of Counseling.  Apparently, that was sufficient to  satisfy OSC.

Let’s say that this wasn’t an OSC/IG issue where other people are looking over your shoulder about a remedy.  You have a manager on the phone who is telling you that they have the results of a pre-action investigation that show that his/her employee has “… improperly and unlawfully handled complaints involving sexual harassment and discrimination.”  (Those were OSC’s words in the Dec. 22, 2020 press release, not mine.)

What do you advise?

When these types of errors occur, which tools make sense? Should this type of situation be dealt with using performance procedures or conduct procedures?

Performance Errors

These are performance errors from what I can see. There is nothing mentioned in any of the documents that I read that indicated that the EO Officer gave this bad advice for some nefarious reason or received any benefit from doing so. I read the report to say that the person believed that her actions were proper. She was wrong. These are mistakes. Horrible mistakes.

What do you do with performance mistakes under normal circumstances? You would probably talk about providing a chance to improve the performance. But is that always the best answer?  Sometimes a performance approach doesn’t make sense.

Let’s revisit the facts of this case. The director had previously been an active-duty military equal opportunity specialist from 1994 to December 2007 when she retired from active duty.   She had worked as a civilian EEO specialist from 2008 until August 2016, when she took over as the EO director. She had served as the ADR program manager prior to becoming the EO director. Here’s my first question about a performance approach: Does an opportunity to demonstrate acceptable performance make sense when you are talking about someone who has been in the program for 20 years who doesn’t understand these fundamental principles? The areas where mistakes were made were not fine points from some recent case. These were extremely basic issues including interfering with the right to file a complaint, not identifying conflicts of interest,  and more.

If you were to advise that an Opportunity to Demonstrate Acceptable Performance (ODAP) was the recommended course of action, how would you advise management to handle it? You have the most senior person in the function who is failing. Who would be the ODAP reviewing official who would assess the work? It certainly wouldn’t be the military officers who were the likely superiors of this position. How could you do it? I suppose you could bring someone in from the headquarters for 30 days (or 60 or 90 since EO 14003) so that you had a technical expert who could evaluate the work. How could you maintain the EO Officer’s ability to perform in a normal setting with this HQ person around looking over her shoulder? The EO Officer supervised five EEO specialists and an EEO superintendent. How can a manager be expected to effectively continue to supervise the work of her own subordinates when her technical skills fall so short?

What is the risk to the agency to allow the person to continue to do this work during an ODAP?

What if the reviewing official is not aware of some decision made by the EO Officer or advice given on a particular complaint, or misses an error in the processing of a complaint during the review process? What if that complainant challenges that down the road?

Are you looking at accepting a complaint well after it should have been untimely, with attendant problems gathering evidence and potential costs and attorney fees?

The EO office in this case was responsible for EEO programs for 21,000 military and civilian employees. There could be a lot of complaints.

Maybe this is a little too close to home since we are talking about a practitioner in our business and it’s hard to step back from that. But let’s say instead that your deputy director calls you and tells you that he/she has the results of a pre-action investigation that shows that the head of contracting has “improperly and unlawfully handled certain aspects of contracts.” What if a district manager for Social Security has “improperly and unlawfully handled certain Social Security applications?” What do you advise?

When I worked for the Navy, I did a performance action from a regional level office on an HR Director at a location many states away. I racked up a lot of frequent flyer miles working on that case. He was ultimately removed. He reported to a civilian technical director whose expertise was in aircraft testing and design; however, in this case, the issues that the HR director was having were that he was not being responsive to managers (including the technical director) on required actions and was not properly carrying out management responsibilities for his own staff. It wasn’t a question of the quality of his work – when he did it. There was no problem in that case with the non-HR supervisor judging whether the HR Director succeeded during the ODAP. Things would have been quite different if he were giving bad advice or directing his staff to do things that didn’t comply with law, regulation, policy, and I needed someone to judge whether the work was technically correct. d

Given the information published by OSC on this case, I don’t see how 432 procedures would work here.

Performance Errors and Conduct

It’s important to remember that performance errors don’t have to be intentional to be actionable under conduct procedures. There are many cases where employees have been negligent or did their work carelessly where actions were taken under conduct procedures and upheld by the Board. We’ll talk about how those concepts apply to this case next month.

Director of EE Oh No! When HR Practitioners Fail to Perform

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By Barbara Haga, February 10, 2021

A case caught my eye earlier this week. I was reading through another newsletter focused on the Federal workplace and saw this headline: Air Force EEO Director Removed Following Investigation. Of course, I had to read that article. Discipline among HR practitioners doesn’t come up all that often, and certainly doesn’t make the news.

The article was about the director of EEO at Hill Air Force Base (AFB), which is located near Ogden, Utah. It was written by an attorney who had represented one of the whistleblowers involved in the case.

The EEO director was removed after an Office of Special Counsel (OSC) investigation into whistleblower allegations regarding how EEO complaints were handled at the base, according to the article. The Special Counsel and the Air Force looked into the claims and determined that, among other things, the director “… actively discouraged employees from filing EEO complaints, improperly modified and rejected EEO complaints and allegations, provided false and misleading information about the EEO process, and failed to identify conflicts of interest by management during the EEO mediation process.” There were also findings related to improper actions by military attorneys at the base.

The article was focused on the fact that the whistleblowers were successful in getting the issue in front of the OSC and agency officials, who took action to fix the process. Certainly, that’s an outcome we would hope for. Yet, I had to know more.

If you’ve never used the OSC site to read about their investigations before, be aware that there is a lot of information there. Under Press Releases you will find notices when the OSC has made a finding on a particular matter, when they are announcing details about case processing, or making an interpretation that they want to make available to the public. You will find Hatch Act interpretations and notices about cases like the one that is the subject of this column there.  Under Public Files you can read case documents, which is where we begin to look at the Hill AFB case.

The initial report of investigation prepared by the Air Force, after the case was referred to them by OSC, includes background information relevant to this discussion. That initial referral took place in September 2018.  The Air Force response of 139 pages is dated Dec. 9, 2019.  The letter from OSC to the President advising that the whistleblowers’ allegations were substantiated was dated Dec. 22, 2020.

The EEO office was responsible for the implementation of federal laws and USAF policy to eliminate unlawful discrimination and sexual harassment for the 21,000 military and civilian employees at Hill AFB.

The EO director was the head of an office that included 5 EEO specialists and an EEO superintendent. (The director is not identified by name, but in some of the statements is referred to as “she,” so I will do the same.)

The director had previously been an active-duty military equal opportunity specialist from 1994 to December 2007 when she retired from active duty.  She had worked as a civilian EEO specialist from 2008 until August 2016, when she took over as the EO director. She had served as the ADR program manager prior to becoming the EO director. From the information I could glean from the report, this position would be the equivalent of a GS-13.

Air Force Findings

The allegations the Air Force investigated are listed below. I have very briefly summarized the findings:

1 – Whether the EO director actively discouraged employees from filing EEO complaints.

Substantiated. One of the whistleblowers was in the informal step regarding a sexual harassment complaint. The EO director advised the employee could not file because some incidents were outside of the 45-day window, even though there were continuing violations, and that her case wouldn’t go anywhere. The EO director said to the employee that because there were no witnesses, the claim “wouldn’t carry any weight.”

2 – Whether the EO director inappropriately modified or rejected EEO complaints and/or allegations.

Substantiated. The EO director negligently performed both the EEO counseling and the acceptance/dismissal functions for one of the whistleblower’s complaints in violation of regulations regarding timeliness and dealing with patterns of behavior in sexual harassment and hostile work environment claims. In addition, there were incidents where records were not complete about why issues were dismissed in certain cases.

3 – Whether the EO director gave employees false and/or misleading information about the EEO process.

Substantiated. The EO director improperly advised employees that a) complaints could not be amended when they could have, and b) an employee in a sexual harassment complaint did not have an option to remain anonymous in the informal stage. The director also advised a contractor that he/she could not file a complaint without doing due diligence to determine if the contractor would be considered an employee.

4 – Whether the EO director failed to identify conflicts of interest by management during the EEO mediation process.

The EO director did allow management officials to be involved in settlements in cases they were involved in, but the investigation found that no law, rule or regulation was violated.

The agency was directed to look at whether the EO director engaged in gross mismanagement. The Air Force did not find evidence of mismanagement.

The Remedy

This is scary stuff.  The person entrusted with management of the system that allows employees to bring issues of illegal discrimination forward is making serious mistakes that deprive employees of their rights. The 2019 Air Force report indicated that the subject of the investigation would be referred to appropriate officials for consideration of any appropriate disciplinary action. The letter to the President explained what action was taken. The Air Force committed to revising training requirements for EEO personnel, to issue new policies regarding conflicts of interest, and they referred the issues related to the two military attorneys to the Judge Advocate General Corps.

The EO director was removed from her position and reassigned to another office with no involvement and influence over EEO filings and issued a Letter of Counseling. I’m still scratching my head over this one. More next time.

New RIF Regs Raise Concerns About Performance Appraisals

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By Barbara Haga, January 11, 2021

Late last year, OPM issued new regulations on the process for determining retention standing in a reduction-in-force (85 FR 81839). The comment period ends Jan. 19.

These regs implement a requirement from EO 13839, “Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles.”  Section 2 of the EO entitled “Principles for Accountability in the Federal Workforce,” sets a list of requirements that we are all familiar with such as eliminating the requirement for progressive discipline and the directive to issue decisions in 15 business days.  The last item on that list was that agencies should prioritize performance over length of service when determining which employees would be retained after a RIF. That item indicated that regulations would have to be issued under Sec 7 of the order for this to occur. Sec 7(a) stated:

Implementation. (a) Within 45 days of the date of this order, the OPM Director shall examine whether existing regulations effectuate the principles set forth in section 2 of this order and the requirements of sections 3, 4, 5, and 6 of this order. To the extent necessary or appropriate, the OPM Director shall, as soon as practicable, propose for notice and public comment appropriate regulations to effectuate the principles set forth in section 2 of this order and the requirements of sections 3, 4, 5, and 6 of this order.

As a result, OPM determined to change retention order. Currently, employees are listed by tenure, veterans’ preference, then length of service that includes augmentation based on the average of the last three appraisals assigned in the prior four-year period. The order under the proposed regulations would be tenure, the total value of the last three ratings assigned in the prior four-year period, veterans’ preference, and length of service.

What OPM Didn’t Adopt

OPM’s proposed regs change the determination of retention within 5 USC 3502. The regs are not as drastic as what was done several years ago at the Department of Defense. Section 1101 of the NDAA for Fiscal Year 2016 granted DoD authority to establish procedures which provide that the order of retention would be based primarily on performance. In any DoD RIFs occurring on or after Jan. 19, 2017, employees are placed in retention order by performance first. Their retention order is 1) rating of record; 2) tenure group; 3) average score; 4) veterans’ preference; and 5) DoD service computation date-RIF. Within the performance category, the DoD system also categorizes those who have periods of assessed performance of 12 months or more over those who have less than 12 months of assessed performance.

What Will it Mean?

I spent my career working for two agencies (NASA, DoD), that have populations with higher average ages than many other agencies. How does that impact RIF? The vast majority of employees would have more than three years of service as a civilian employee, so virtually everyone is Tenure Group I. While we had some temporary and term employees and new Federal employees from time to time, when you looked at the overall population basically all our employees were in the same Tenure Group. If there is not a lot of differentiation with tenure, then under the proposed regulations, the factor that will have the greatest impact will be performance.

I don’t have a problem with performance being the determining factor in principle. It makes sense. At the end of the RIF, you would hope to have your best people still working for you carrying out whatever functions remain. My issue is whether the appraisals are good enough to have that kind of impact.

Are the Appraisals Sturdy Enough?

I spend a lot of time training on performance topics and working with HR practitioners and managers on how to use the system effectively. I was responsible for the operation of  the performance management programs at various times during my career.  I’ve seen things that make me question whether annual assessments legitimately capture the level the employee achieved.

Are the elements designated as critical really critical? I spend a considerable amount of time reviewing performance plans. I see scary things. It’s not as bad as seeing dead people (nod to The Sixth Sense), but it’s enough to make me cringe. Sometimes, the thing identified as critical is fine, but the measures are off. Even if those things are correct, I worry whether the assessment reached when applying the measures to that critical thing is legitimate. What about the manager who gives a higher rating than what the employee deserves because he knows that there is going to be a grievance or EEO complaint if the employee doesn’t end up with the summary rating desired? Or the manager who rates everyone the same because it’s easier than explaining distinctions among the employees?

Or the upper-level manager who violates 5 CFR 430.208(c) by instructing subordinate managers that they may only have a certain percentage of employees at the top rating level?  Or the manager who would have initiated removal of an unacceptable performer, but upper management directs her to give a Level 3 rating instead?

I’m not the only person concerned. Dr. Howard Risher is a consultant in the areas of compensation and performance management.  He has been involved in studies of Federal employee performance and compensation over many years. He was part of a group that was involved in the study that led to the Federal Employees Pay Comparability Act in 1990, and he was also part of the group that recommended performance-based pay for Federal employees in 2004. Dr. Risher writes frequently for Government Executive. In December, he wrote: “An Office of Personnel Management proposal to link layoffs to performance ratings was unexpected. If the ratings were valid, it would make sense but ratings have little credibility.” Ouch.

Given that these regulations are tied to EO 13839, which is likely to die very soon perhaps we will never see final regulations that incorporate this change; but the prospect worries me.