Don’t Throw Out the Baby With the Bath Water

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By Barbara Haga, December 15, 2020

This expression is bizarre – who would lose track of their baby in the bath? It is interesting, though.  I did a bit of research.  The phrase is German in origin and by the 1600s, it was commonly used and appeared in writings of astronomer Johannes Kepler. One site explained that the German version would actually be “you must empty-out the bathing-tub, but not the baby along with it.” The message is simple: One shouldn’t discard something valuable along with something undesirable. That’s my request to the new administration.

Dear President-Elect Biden and Transition Team

At FELTG, we train HR practitioners, attorneys, and managers on how to hold employees accountable. Whether the issue is performance, conduct, or attendance, we teach those responsible for effective human resource management how to navigate a complex system of procedures for taking action when Federal employees don’t live up to expected standards.

I realize that the prospects of anything in EO 13839, Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles, surviving the first few days of your new administration are slim, but I hope that at least there will be consideration of maintaining certain provisions that are important to supervisors faced with the task of managing Federal employees.  The fact that EO 13839 was issued with the two orders that set limitations on union matters may mean that worthy provisions relating to conduct and performance actions will be cancelled in the same fell swoop that will undo EO 13836 and 13837.  However, I hope you will agree that accountability in Federal service is a worthy goal – whether there is a Democrat or a Republican in the White House.

Unacceptable Performance

I want to specifically focus on dealing with unacceptable performance because it has been recognized for many years that failure to deal with poor performance is an issue in Federal agencies.  The Civil Service Reform Act (CSRA) of 1978, which passed during the Carter Administration (and during your tenure in the Senate), included the nine basic principles that set the guidelines for recruiting and retaining a high-quality workforce.

One of the nine principles addressed the need for dealing with poor performance. 5 USC 2301(b)(6)  states: “Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.”

The law directs managers to hold employees to standards of acceptable performance and to take action when they do not improve and set the procedures by which actions could be effected.

While those procedures gave managers what were supposed to be more effective tools to maintain accountability for acceptable performance, the process hasn’t been used as most expected. In 1995, the MSPB reported that of the 8,785 initial appeals decided by the Board’s Judges only 146, or 2 percent, were unacceptable performance actions. The relative percentage has never varied significantly. The MSPB’s 2019 annual report stated that there were 4,893 appeals and 113 (again 2 percent) were performance actions.

The Federal Employee Viewpoint Survey has shown that federal employees don’t see that employees in their organizations are held accountable to performance standards. Since the inception of the survey, there has been a question designed to elicit this information.

Question 23 on the survey is “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve.” In response to the first survey in 2002, only 25 percent of Federal employees answered that they strongly agreed or agreed that their units dealt with poor performance appropriately. That was the lowest positive score on the entire survey. Over the years, the numbers in the survey have increased somewhat.

The 2019 survey results showed that 33.7 percent answered that they agreed or strongly agreed with the statement.  It’s no longer the lowest positive score on the survey. It’s number two from the bottom. That’s not much improvement.

In years since, this issue has been recognized but no action taken to try to correct the situation.  The Bush Management Agenda for FY 02 addressed “real consequences for failure,” but there were no changes implemented at the time. The White House deficit reduction plan submitted in September 2011 included reform of personnel system, highlighting the need for addressing poor performance. The GEAR (Goals-Engagement-Accountability-Results) Report issued in 2011 under the auspices of the National Council on Federal Labor-Management Relations noted that there needed to be accountability at all levels, yet OPM did not make revisions. There were multiple calls for action, some from the last time you were part of the Administration, but no action ensued.

What Did EO 13839 Do?

The Order states: “Failure to address unacceptable performance and misconduct undermines morale, burdens good performers with subpar colleagues, and inhibits the ability of executive agencies … to accomplish their missions. This order advances the ability of supervisors in agencies to promote civil servant accountability consistent with merit system principles while simultaneously recognizing employees’ procedural rights and protections.” The performance-related provisions of EO 13839 directed agencies to take certain steps to make unacceptable performance actions easier, including:

  • Minimize burden on supervisors (Sec. 2.(a)). In some cases, HR advisors had added extra requirements beyond what the law and regulation required to performance actions, such as documenting pre-demonstration period performance.
  • Eliminate pre-demonstration period requirements (Sec. 4.(b)(ii)). In some agencies, there were extra steps built in. Supervisors had to give formal notice of an “assistance period” before initiating a performance action. In one agency, that totaled 150 days – a 30-day assistance period before a 120-day demonstration period. For a manager at that agency to take action was an investment of 150 days, even though many of those employees performed transactional work where the supervisor would have ample time to determine if the employee could perform acceptably or not in much less time.
  • Eliminate any requirement to use 432 procedures (Sec. 4.(b)(ii)) and use 752 (conduct) when appropriate (Sec. 2.(h)). An illustration comes from the VA. A pharmacist was making mistakes in filling prescriptions. In some cases, it was the wrong medicine and in others it was the wrong dosage. Any mistakes not caught could potentially kill one of our veterans. Yet, for some reason, the agency put that employee on a demonstration period. This action should have been handled under disciplinary procedures. The demonstration period was dangerous.
  • Limit demonstration periods to 30 days in most cases (Sec.2(a)/Sec.4.(c)). This was the most controversial performance-related provision of the Order. For most jobs, 30 days is enough to judge whether there is improvement. Demonstration periods are not limited to 30 days by the Order when the nature of the work demands something different, which is exactly what the regulations provide.  5 CFR 432.104 states “… the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee’s position.”

President-Elect Biden, I hope I’ve made a case to keep these tools in the hands of the managers who will be charged with carrying out the programs that you want to establish during your administration. Give them the things they need to manage effectively. Please don’t throw the baby out with the bath water!

Another Look at Lee v. FAA: Getting a Disciplinary Action Right

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By Barbara Haga, November 17, 2020

In a prior column, I addressed the case of Lee v. Federal Aviation Administration, No. 2019-1790 (Fed. Cir. July 29, 2020) in regard to failure to truthfully respond during an investigation and potential (or lack of it) for rehabilitation.

To recap: Lee was a civil engineer who was conducting extensive personal business on duty. The agency initially proposed removal but lowered the penalty to a 45-day suspension. The arbitration resulted in the penalty being reduced to 30 days. The Federal Circuit upheld the 30-day suspension. This month, I delve into the details of how the action was handled and also take a look at the impact of union contract language on management’s ability to discipline.

The investigation

The initial inquiry began apparently after an e-mail containing inappropriate pictures was sent to Lee by a coworker. That resulted in a request to obtain Internet and email history from both the sender’s and Lee’s work computers.  There is nothing in the Federal Circuit decision that indicates that the supervisor, Mr. Smith, knew about her extensive use of the computer and Internet for personal business at that point. When the report was submitted it revealed the following:

The forensic report of Ms. Lee’s FAA internet history spanned more than 1,900 pages and revealed that between January and April 2017, Ms. Lee conducted 33,968 online transactions. Mr. Smith saw concerning levels of activity on eBay, Amazon, and Etsy, among other non-work-related sites. He was particularly concerned that, both during and after work hours, Ms. Lee was frequently visiting Etsy where, as he discovered, she sold handmade crafts through her account, “BoosTinyBits.”

Analysis of the degree of misuse

When dealing with computer misuse, it is important to get the details straight. In her response to the action, Lee noted that the initial report did not account for time that windows were left open for extensive periods of time when there was no activity on that page. Because Lee raised this, Smith requested a supplemental investigation. Here’s what happened:

The supplemental report excluded obviously work-related transactions and removed from the time calculations any periods where the time between active clicks on a certain webpage was more than five minutes. Still, 22,829 internet transactions remained. Based on this narrowed data, the supplemental report calculated that Ms. Lee had an average of 1 hour and 44 minutes per day of not clearly work-related internet use over the 45 workdays on which her usage was tracked.

The first sentence is troublesome. It took a supplemental report to exclude the obviously work-related transactions? If the report was used in the proposal to substantiate misuse, it needed to clearly identify what was misuse. Perhaps there was an issue because the original purpose of the analysis was to determine if there was something inappropriate going on between Lee and her coworker and the report wasn’t geared to deal with misuse related to conducting personal business, but the advisor who was working this case should have been looking at this in preparing the proposal. Dropping the number of transactions by 10,000 or roughly 1/3 after her reply is huge.

The issue about windows being left open should also have been addressed before the proposal was issued. I have been known to leave windows open for full days!  So, any data about how long I was actually doing something on that site would be misleading without checking the activity on the page. It appears that the IT staff was able to provide this information since it is included and accounted for in the supplemental report.

The Federal Circuit decision states that original removal was reduced to a 45-day suspension because of “Lee’s lack of prior formal discipline, her satisfactory work performance, her five years of federal service, and her statement that she had stopped Etsy transactions at work, stopped accessing the Etsy website, and ceased ‘all nonwork’ related usage of Amazon and eBay.’”

I can’t help but think that another factor that led to the mitigation was that the proposal cited a significantly greater amount of misuse than could be substantiated.

Conducting the investigation

One of the charges against Lee was lack of candor. To prove lack of candor, you have to be able to show that  the person failed to disclose something that, under the circumstances, should have been disclosed to make the statement accurate and complete. Lee received written notice of the potential charges and was scheduled for the interview in advance.

The decision states: “At several points, Ms. Lee asked the interviewer to clarify his questions, but he told her that he could not depart from the questions as written.” What kind of questioning is that? Was a robot doing the interview?

Lee argued in her appeal of the arbitrator’s decision that she didn’t knowingly provide incomplete answers to the interviewer because she did not understand the questions. The court described the questioning as “inartful,” but clear enough to warrant more than the one-word answers Lee gave. The FAA survived this challenge, but agencies should be able to do better. Trained investigators should be able to rephrase and elaborate further on the point of the question.

Contract Language

Participants in my Advanced Employee Relations course have heard me address this. [Editor’s note: Register now for the next Advance Employee Relations training December 1-3.]

Union contract provisions that may seem routine can come back and bite you. This case is a perfect example. The arbitrator upheld every one of the agency’s charges – misuse of government property, misuse of government time, and lack of candor. However, the arbitrator mitigated the penalty to a 30-day suspension. The union agreement required that disciplinary action be prompt.  The arbitrator said that waiting five months after the investigatory interview to initiate the action was not prompt, so a lower penalty was warranted. The Federal Circuit did not disturb that finding.

There is no information in the decision about why there was a delay.  Did it take several months to get the supplemental investigation? Was the manager out for several months during the decision phase of the action? Whatever the reason, having your legitimate 45-day suspension reduced to 30 is a high price to pay for not being prompt.

Dolezal is a Doozie: ’90s Case Highlights Lack of Potential for Rehabilitation

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By Barbara Haga, October 14, 2020

Last month, I wrote about Lee v. Federal Aviation Administration, No. 2019-1790 (Fed. Cir. July 29, 2020) and explained that it had a lot of issues in it that I wanted to cover. This month, we will continue with the discussion of the Douglas factor “potential for rehabilitation.”

A Favorite Case

Anyone who has ever been in a discipline course with me has heard about this case. It demonstrates important issues related to the lack of potential for rehabilitation. This case is so unbelievable that it could have been on an episode of Ripley’s Believe it or Not!  The case is Dolezal v. Army, 58 MSPR 64 (1993). The decision was affirmed without opinion by the Federal Circuit in 1994.

Dolezal was the Assistant Deputy Chief of Staff for Base Operations Support (Civilian Personnel) for the Training and Doctrine Command of the Army. He was the chief civilian personnel officer for 40,000 civilian employees nationwide. He was appointed to the Senior Executive Service in 1991 and held an ES-3 position at the time of the events that led to his removal.

As the director of personnel for TRADOC, he supervised an employee named Cline, who was the GM-15 Director of the Peninsula Civilian Personnel Support Activity (PCPSA). One of Cline’s direct subordinates was Hamilton, a GM-13 HR practitioner who held the position of Chief of the Operational Support Division at PCPSA. Dolezal was the reviewing official for all personnel actions that pertained to Hamilton, including performance appraisals, promotions, and awards. Both Dolezal and Hamilton were married, but they began a social relationship in the fall of 1991 and by the end of that year the relationship had become sexual. They used the agency’s e-mail system to “… conduct voluminous personal and, occasionally, sexually suggestive correspondence ….”  So, we have two HR practitioners engaged in a sexual relationship and one is the second-level supervisor of the other and it is all being recorded in the agency e-mail system.

I cannot imagine how anyone involved in this situation could have expected this would have a happy ending.

In 1992, Cline began to suspect that Dolezal was sexually harassing Hamilton. She asked Hamilton if this was the case, but according to Cline, Hamilton gave an equivocal response about whether the apparent relationship was consensual. Subsequently Cline reported the matter to the agency’s IG.

Response to the Allegations

As a result of the investigation, Dolezal was charged with:

  1. Conduct unbecoming a Federal employee, with two specifications: (1) the “adulterous relationship with a subordinate female employee” in violation of Army disciplinary guidelines and (2) he made “disparaging and demeaning comments” about Cline in some of his e-mails to Hamilton.
  2. Violations of the standards of conduct in that his relationship with Hamilton could reasonably be expected to create the appearance of giving preferential treatment to Hamilton; could reasonably be expected to result in impeding Government efficiency; could reasonably be expected to create the appearance that he had lost independence or impartiality … and, could reasonably be expected to adversely affect the confidence of the public in the integrity of the Government and (2) that he wrongfully and without authority misused Government equipment in violation of Army guidelines by sending “numerous messages of a personal nature” to Hamilton via the e-mail system.

What was Dolezal’s response? He admitted he had an affair with Hamilton, that he used the e-mail system to send numerous love letters to her, and that some of those e-mails contained remarks that disparaged Cline. What did Dolezal raise as a defense?

There were several. He claimed that the penalty was too severe, that the penalty didn’t fit the table of penalties, and that comparators were subject to lesser penalties. He also said that his use of the e-mail system to send notes to Hamilton was part of widespread misuse throughout the organization and thus it was unfair to discipline him. His answer regarding his comments about Cline were private remarks between friends and, in his words, “… were common in the workplace and not actionable.” The attempts to deflect responsibility seem minor compared to Dolezal’s main argument that the affair was none of the agency’s business.

Dolezal had 23 years of service, no prior discipline, and what was described as an exemplary record. However, the agency decided to remove him. The AJ upheld the penalty, as did the Board.

Hamilton was also disciplined. According to the Dolezal PFR, she was demoted from a GM-13 to a nonsupervisory GS-12 position for her part in the misconduct and for making a false statement to the IG investigator.

Potential for Rehabilitation

The first time I read this decision, I was in shock. The head of HR for a headquarters-level Army command doesn’t know that an affair with a second-level subordinate is a work issue? Instead of taking responsibility for the things he admitted to, his answer is that it has no impact on his job?

How did the AJ respond to this argument? She wrote, Dolezal “… is not a good candidate for rehabilitation because he has yet to recognize that he committed actionable offenses.”

The Board noted that the argument was raised again on the PFR, writing, “Even at this late date, the appellant still does not understand the serious nature of his misconduct. He still contends that his affair with Hamilton was none of the agency’s business and he still denies that his flagrant misuse of PROFS (the e-mail system) and his offensive and demeaning comments about Cline are actionable misconduct.”

In the PFR, Dolezal claimed he showed contrition for the misconduct. The deciding official characterized it differently. The deciding official recounted that Dolezal showed some remorse for the difficulty caused by the IG investigation but never took ownership of the underlying inappropriate behavior.    Would things have been different if he had taken responsibility when the IG investigation began?  What if he had said he would go to counseling, or if he said he would not have further contact with her, or if he just said I did those awful things that no head of HR should ever do and I deserve some significant disciplinary action? Would the Army have chosen a lesser penalty? We will never know.

Dolezal was guilty of one other thing – very bad timing. The Tailhook scandal grew out of events that took place in the fall of 1991, so attention on inappropriate behavior of a sexual nature in DoD was at an all-time high at that point. Dolezal argued in the PFR that he was being treated as if he were a military officer in regard to this action because the deciding official testified that a military officer who engaged in similar misconduct would have been court-martialed. The Board interpreted that to mean that the deciding official felt that the misconduct was serious, not that an inappropriate standard was applied.

One Decision – A Lot of Lessons, Including the Power of Accepting Guilt

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By Barbara Haga, September 16, 2020

Sometimes you pick up a case that is just chock full of good information. That happened when the case of Lee v. Federal Aviation Administration, No. 2019 -1790 (Fed. Cir. July 29, 2020) appeared in a recent weekly MSPB case report. (OK, this is the second column in a row using decisions that were included in the case report, so maybe you should subscribe. Just click here and sign up.) This decision covers lots of my favorite topics – technology misuse, lack of candor, potential for rehabilitation, and the impact of contract language on management’s ability to discipline. 

Misconduct

Ms. Lee was a civil engineer for the FAA.  In April 2017, when the series of events that led to the discipline began, she had worked for the FAA for five years. She received an e-mail containing inappropriate pictures from a co-worker. Somehow management learned of this, and, as a result, Lee’s second-line manager, John Smith, requested that the agency’s investigations unit pull the Internet and email history from the sender’s and Lee’s work computers. Unfortunately, when the results came in there was a lot more going on besides that inappropriate e-mail.

The forensic report of Ms. Lee’s FAA internet history spanned more than 1,900 pages and revealed that between January and April 2017, Ms. Lee conducted 33,968 online transactions. Mr. Smith saw concerning levels of activity on eBay, Amazon, and Etsy, among other non-work-related sites. He was particularly concerned that, both during and after work hours, Ms. Lee was frequently visiting Etsy where, as he discovered, she sold handmade crafts through her account, “BoosTinyBits.”

I am guessing that most readers are familiar with Amazon and eBay. In their words, Etsy is a “global marketplace for unique and creative goods.” It is a place where crafters can sell goods and people who supply crafters offer items. For a fee, you can advertise goods on their site, conduct online transactions, and sell to individuals anywhere.

I checked as I was preparing this column, but “BoosTinyBits” isn’t registered as a seller anymore, so I can’t tell you what was for sale at “BoosTinyBits.”

Investigation

Lee was provided a notice that she was to report for an investigatory interview regarding potential discipline about allegations of “Misuse/Abuse of Government Computer/Internet/Email, Misuse/Abuse of Government Time Sending/Receiving Inappropriate Jokes/Pictures of a Sexual Nature, and Failure to Report.”

Her union representative accompanied her. From the decision, we learn that Lee did not know at the time of the interview that the forensic report had been delivered.  When asked if she had used her government computer “for unofficial personal reasons while on duty for any reason,”  she answered “no.” She answered “no,” “I don’t know,” and “I don’t understand the question” to several different questions regarding making purchases from eBay and Amazon while on government time and if she was conducting personal business on government time.

We cannot tell from the decision what sort of advice the union official was giving. Maybe Lee convinced the union rep that this was a set up and she never did any of these things. Perhaps the union rep was called at the last minute to participate in a Weingarten meeting and had no opportunity to consult with Lee prior to the meeting. Maybe the union rep told Lee the best option might be to confess and beg for mercy, but she did not take that advice.

I do understand that sometimes people have trouble acknowledging when they have transgressed, but when caught red-handed, I would think the individual would have been more forthcoming than what happened here. Could anyone who is a college graduate and trained engineer working in the Federal government in today’s world not realize that the IT folks would be able to track the sites she had visited and how many times?  Given the thousands of transactions it certainly was not anything that could be characterized as incidental or minimal personal use. The same failure to acknowledge misconduct happened in last month’s column.

Potential for Rehabilitation

The value of the Douglas factor on potential for rehabilitation is often lost on employees who have engaged in bad behavior, and their representatives. When you watch Law and Order, the operative response by the person being questioned may be to deny everything or to refuse to answer, but that is a vastly different world with hugely different rules. Unfortunately, I think this perspective has spilled over into our administrative actions.  Regrettably, it may be short-sighted.

Potential for rehabilitation means that there is some sign that the person learned from the mistake(s) and would not repeat the behavior.  It is a big deal. I was not being facetious about admitting the misconduct and begging for mercy. I have seen it work. The employee has done something serious and is caught. He or she says to the manager, “I did something really awful and I don’t deserve anything from you.  But, if you will give me a chance, I will prove to you I can change.” It works. In my experience, managers do not jump out of bed in the morning saying: “Oh, boy, I’m going to fire someone today.” When faced with adverse actions, managers may be thinking “I don’t want to have to make a decision that takes away someone’s livelihood.” The manager knows that a  firing means a vacancy. Filling jobs is not an easy thing. It takes a long time, a lot of work to interview and check references, and, for some, it takes a long time to get investigations done so that the individual can start work. A lot of time, money, and energy is invested to get folks up to speed to do the job. If the manager is convinced that this person is salvageable, he or she may take the individual up on that offer. Maybe a last chance will be offered. If the employee can change, it is a win-win.

I was a manager for most of my career. If one of my employees came to me and said, “I did something terrible and I need to tell you what happened,” that would get a different kind of response than if I found out some other way. It is definitely something to think about. We will spend more time on the potential for rehabilitation and the Lee decision next time.

Ripped from the Headlines: A Case for Today’s World

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By Barbara Haga, August 19, 2020

This month I am going to leave COVID issues and turn to another topic that is also very timely. This one is about an employee making disparaging remarks that were racial in nature to and about other employees.  This case was included in last week’s MSPB case report.  I am exaggerating a bit when I say “ripped from the headlines” since you would have to have seen the weekly Board report to find this, but this type of bad behavior in the workplace is exactly the kind of thing that could make the news if the press picked up on it. I can just see it – High-level FAA Manager Fired for Racist Texts.  The case stems from a report of misconduct made in 2017 followed by a removal in March 2018. The employee appealed to the Federal Circuit after the MSPB AJ upheld the removal.

The case is Jenkins v. Department of Transportation, No. 2019-2075 (Fed. Cir. Aug. 6, 2020). Cara Jenkins was the Chief of Staff to the FAA’s Associate Administrator for Human Resources. I did a bit of checking on what her position was and found her listed as Assistant Administrator for Human Resources on their HR website. That position is head of human resources for all of FAA’s 45,000 employees.  While the title is not an exact match, it looks like that may have been the position Jenkins was supporting, because her pay level, according to Federalpay.org was “among the highest-paid 10 percent of employees in the Federal Aviation Administration.”

The decision notes that she had been employed for nearly 30 years and held the Chief of Staff position for one year prior to her removal. Jenkins, in addition to being part of the work of the human resources organization, was also a supervisor.

The charges contained in the proposed removal included (1) inappropriate conduct, (2) making disparaging remarks racial in nature, and (3) lack of candor.

The Misconduct 

Jenkins sent a lot of inappropriate text messages. In fact, the removal notice included 18 specifications under charge 1 and 22 under charge 2.  Each specification was a separate text message that negatively referenced one or more colleagues or contained a racial comment about a colleague. Jenkins sent these messages to at least two subordinates. The decision states:

In 2017, one of Jenkins’s subordinates, Sharon Bartley, complained to the FAA Accountability Board that Jenkins had created a hostile work environment. In support of her complaint, Bartley provided the Accountability Board with a number of personal cell phone text message exchanges that she had with Jenkins. Many of the text messages were disparaging toward Jenkins’s colleagues, including senior officials at the FAA. Moreover, many of the messages contained derogatory comments about the race and gender of Jenkins’s colleagues.

During the investigation, another employee (apparently a contract employee), Lavada Strickland, provided copies of text messages she had received that were of a similar nature.

Jenkins was interviewed about text messages she had sent to Bartley. She denied sending them, saying “I do not admit to the validity of these messages … They are allegedly from [a] phone identified as ‘Cara’ with no phone number … I am not saying I did not send them but that I simply do not remember sending some of them.”

However, she apparently gave consent for search of her phone because the investigator exported texts she had sent and that is noted in the investigative report. I can only surmise that she gave consent for that search, since all of the cited messages were sent using personal cell phones and no government resources, as Jenkins later argued in her defense.

The Federal Circuit decision does not quote the racial remarks included in the texts, but they do mention specifics from some of the texts included in the lack of candor charge.  In several sections of the decision, the Federal Circuit mentioned that Jenkins sent texts wherein she described other human resources employees as “… backstabbers, dumb and that they did not know how to do their jobs.”

One of the employees interviewed stated that her supervisor “really had me believing a lot of things about people in HR/Leadership.”  As noted in the decision notice, Jenkin’s misconduct “… undermined the credibility and managerial authority of senior officials at the FAA.”

Jenkins’ Arguments

Jenkins’ arguments at the Federal Circuit did not convince the Court that her removal was not warranted. Two of the arguments were that the FAA had not proven lack of candor and that the penalty was too harsh. Neither succeeded.

The other argument is important for cases like this.  She argued that there was no nexus. The decision explains the reasoning that nexus was proven:

Jenkins also argues that there is no nexus because her comments “were intended to be and were private using personal cell phones and no government resources.” Appellant Br. 29. Jenkins contends that “private off-duty speech is not intended to be the government’s business” and “searching private speech for statements potentially subject to discipline is beyond the government’s reach.” Appellant Br. 38. But this is not a case in which the Agency violated Jenkins’s right to privacy or free speech by illegally searching Jenkins’s private communications for disciplinable conduct. The offending text messages were provided to the Agency by its employees, Bartley and Strickland, in connection with the Agency’s investigation into a complaint about a hostile work environment. Once Jenkins’s misconduct and its effect on the work environment became known to the Agency, there was no law, rule, or regulation that prevented the Agency from addressing the misconduct merely because Jenkins used a personal phone to send messages that she “intended” to be private.

Summary

How can someone who harbors the sentiments that Jenkins expressed rise to the level she did in any Federal agency and manage not to have exposed those beliefs somewhere before? One of Jenkins’ arguments regarding the penalty included that she had a clean record, so no one had officially taken her to task over such behavior in any significant way that remained in her OPF.

Part of what struck me about this case was how closely it followed on the heels of something similar that happened with a broadcast on Facebook. The story reported on June 7 involved retired Navy Captain Scott Bethmann who accidentally broadcast about 30 minutes of his and his wife’s racist diatribe.  He is a Naval Academy graduate and apparently served successfully for a full-term military career.  What is so shocking to me is how he served so long without showing his true colors.

I heard third hand that an African American officer who had served under Bethmann said that he never saw it.  He never had any clue from anything Bethmann said or did that he (Bethmann) believed the things that he said during the Facebook broadcast.

I understand that racism can be hidden and subtle, but how is someone enough of an actor to pull off a 20- or 30-year career and never slip up in front of someone willing to take the issue on?  Or, is the problem that others in positions of authority do see it, but they don’t think they can discipline since there was no overt action, or, frighteningly, they agree?  I can’t solve the second part, but at least you now have a recent case that describes when a removal action was supported.  It’s a small thing in the big picture, but hopefully a step in the right direction.

When Cleaning Desks and Wearing Masks is Required: Life With COVID-19

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By Barbara Haga, July 15, 2020

We’ve previously talked about issues related to employees who report to work with symptoms and what to do about taking temperatures when employees are reporting to the worksite. What other issues could present once more and more employees are returning to work? This month, we look at wearing masks and cleaning workspaces.

Wearing Masks

Masks are a hot button issue. I do not understand it, but I have seen enough to accept it is real.  Forbes published an interesting article in May on the top reasons why people don’t want to wear them. The article explains it covers everything from claiming individual rights are being abridged to it’s not cool or for those who worry about it, not masculine.

Regardless, the OSHA guidance recommends that employers encourage workers to wear face coverings at work. The CDC guidance updated in May 2020 advises employers to encourage employees to wear cloth face coverings in the workplace, if appropriate.

When are masks not feasible? According to the CDC, it includes situations such as the following:

  • Working with people who are deaf or hard of hearing who rely on lipreading.
  • People with intellectual and developmental disabilities, mental health conditions or other sensory sensitivities.
  • Younger children older than 2 (e.g., preschool or early elementary aged).
  • People engaged in high intensity activities, like running.
  • People engaged in activities that may cause the cloth face covering to become wet, such as swimming.
  • People who work in a setting where cloth face coverings may increase the risk of heat-related illness or cause safety concerns (for instance, straps getting caught in machinery, chemicals accumulating in mask, etc.).

Clearly, these are not typical issues in many Federal workplaces. The question will be whether masks are encouraged or required, and, if required, what happens when employees refuse to comply.

As noted last month, several unions have posted information about concerns regarding reopening and what they see as requirements for a safe return to the workplace. AFGE’s “10 Principles on Return to Worksites” notes:

“Protections must be put in place by the agency: temperature taking at the door/masks and appropriate PPE/hand sanitizer/soap/tissues, proper distancing, dividers, regular disinfecting, air circulation, etc.”

The Federal Workers Alliance,  which includes a long list of unions, including NAGE, IAFF, IAMAW, PASS, POPA, SEIU and IFPTE, demands that “[A]ll individuals present in the worksite should be expected to wear masks to reduce the possible spread of COVID-19 through respiratory droplets.” NTEU’s press release discussed whether agencies were providing hand sanitizer, disinfectant wipes and masks, but noted employee should be able to bring their own masks.

As discussed in my May column on taking temperatures, if the agency sets a mandatory requirement and is faced with employees who refuse to comply, then disciplinary action should ensue. The charge would likely be failure to follow instructions or some variation of that. Since the employee won’t be allowed in the workplace without the mask, he or she would have to be sent home on admin leave just like any other situation where you have an employee who reports not ready, willing, or able to perform work. The admin leave would extend until you could get your notice of proposed action completed. At that point, the employee could be on notice leave while waiting for the reply and decision.

The local union is not in a great position to argue against wearing masks if the national union is advocating their use. I suppose it is possible that an employee might have some medical reason (which would need to be supported with medical documentation) as to why he or she cannot wear a mask. That could create a question regarding accommodation if that underlying medical condition would rise to the level of a disability.

Or, perhaps the employee will agree to wear the mask after:

  • Receiving a proposed action
  • Or after the discipline is effected.

Cleaning Workspaces

The CDC guidance on reopening addresses the need for cleaning, stating that reducing the risk of exposure to COVID-19 by cleaning and disinfection is an important part of reopening that will require careful planning. What’s in that plan? What new requirements are going to be necessary to keep workspaces as free from the virus as possible? Are there going to be issues with obtaining compliance with these reopening requirements? Could be.

The information issued by the unions may offer a clue. AFGE talked about protections that needed to be put in place by the agency, which included “regular disinfecting.”

The NTEU press release noted: “Employees remain anxious about the risks posed by taking public transportation, being in enclosed facilities with hundreds of coworkers and whether their work stations will be consistently and properly cleaned and disinfected.”

The Federal Workers Alliance post included a requirement to “assign and ensure that all shared/common areas and equipment are sanitized at regular intervals by personnel qualified and trained in disinfection of COVID-19” in their list of required agency actions. These postings seem to indicate that the expectation is that cleaning of individual workspaces is not being done by employees but by someone else.

Is it reasonable to expect there are agency personnel or contractors available with the necessary time, products, and training to do all of this? This may be within the realm of existing contracts and resources for some agencies.

It seems likely to me some agencies will need employees to take care of some of this. That means cleaning of individual keyboards, desk, phones, etc. It could extend to common areas such as counters in break areas, refrigerator doors, coffee pots, and door handles. Copiers, faxes, hole punches, and commonly used staplers might also make the list.

Encouraging voluntary compliance with these kinds of tasks is probably the easiest approach. Perhaps employees in the unit could draw up a rotational schedule for the tasks covering common areas. An employee might volunteer to do the cleaning.  But, I believe it would be naïve to think that there won’t be some who say “that’s not in my p.d.” Bottom line: If it is a requirement, not complying would be a failure to follow instructions, although perhaps not at the same level as with the masks.

These are actions that have likely not been carried out before. However, as has become painfully apparent, it’s a brand new world.

Guidance Gives Us a Reading on the Temperature-Taking Issue

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By Barbara Haga, June 17, 2020

Last month’s column addressed what to do if an employee who was reporting to your workplace refused to have his or her temperature checked. Guidance has been issued from CDC and EEOC on the topic of temperature-taking in the workplace. In the General Business Frequently Asked Questions in the section entitled “Reducing the Spread of COVID-19 in Workplaces” (updated May 3, 2020), the CDC describes use of such screenings to limit the spread of the virus. In Section B.7  of the EEOC guidelines entitled, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (dated March 21, 2020), the EEOC stated temperatures could be taken.

So, where is OPM in all of this? Very little has been published on this point on the OPM site. The Employee Relations guidance does not mention taking temperatures. OPM directs agencies to the CDC website for medical-related issues. OPM does include a short statement related to medical on the page entitled “Pandemic Information Agency Preparation.”  OPM’s paragraph is entitled “Medical Evaluation Program Guidance,” and it states, “Agencies may establish periodic examination or immunization programs to safeguard the health of employees whose work may subject them or others to significant health or safety risks due to occupational or environmental exposure or demands.  The new programs are established through written policies or directives. (5 CFR 339.205)”

Interestingly, OPM does not include taking temperatures in their return to work plan found here. So, what is an agency to do? Is there authority to take temperatures? We all know that the OPM regulations in 5 CFR 339 establish limitations on when agencies can conduct physical and psychiatric examinations. We usually address these regulations related to a specific individual when there is a question about whether he or she is able to perform the essential functions of his or her job. At FELTG, we have written many times about the dangers of not complying with those regulations and what happens when the MSPB gets a case where an agency has directed an examination that does not comply with those regulations. See Doe v. Pension Benefit Guaranty Corporation, 117 MSPR 579 (2012) and Georgia Harris v. Department of the Air Force, 62 MSPR 524 (1994), dismissed without opinion, 39 F.3d 1195, (Fed. Cir. 1994). In both cases, the employees were directed to undergo psychiatric examinations which were found to have been unenforceable.

However, as noted above, the OPM regulations cover other situations where agencies may need to obtain medical information. The actual text of the regulation is as follows:

Agencies may establish periodic medical examinations, medical surveillance, or immunization programs by written policies or directives to safeguard the health of employees whose work may expose them or others to significant health or safety risks due to occupational or environmental exposure or demands. The need for a medical evaluation program must be clearly supported by the nature of the work. The specific positions covered must be identified and the applicants or incumbents notified in writing of the reasons for including the positions in the program.

Surveillance Programs

What would such surveillance programs typically cover? Normally such a program would apply to certain categories of employees, such as employees working in a certain area of the world, or certain types of jobs, such as nuclear workers. For example, DoD 6055.05-M, May 2, 2007 (updated August 31, 2018) entitled “Occupational Medical Examinations and Surveillance Manual” contains 82 pages of guidance regarding such screenings. The manual establishes requirements for examinations for exposure to chemicals such as benzene and cadmium and also sets requirements for evaluation for exposure to asbestos and noise, as well as for respirator use. There are specific requirements for jobs such as firefighters, police officers, and commercial drivers. The Department of State has established protocols for medical clearances for individuals in overseas government positions here.

COVID-19

Where does that leave us with COVID-19? This is a significant health risk that could occur in your facility. Infection is a risk for everyone in the workplace, although some job categories could clearly be a greater risk because of contact with patients in a medical setting, dealing with inmates, interacting with the public, etc. Because it is communicable, it affects not just the employee, but also the members of each employee’s household. New infections contribute to community spread, which these months of closure and social distancing were aimed at limiting. Could an agency check temperatures to limit the risk of exposure in the workplace? It would seem to me that the regulation provides for such measures.

What would need to be in place? The regulations require the need for the program to be clearly supported by the nature of the work. I would take the position that this use of temperature screening would apply to all jobs because there is a risk of spread of the virus in the workplace, whether that workplace is a hospital or an administrative office. The regulations also say that specific positions covered must be identified and employees notified in writing of the reasons for including the positions in the program. Therefore, my recommendation would be to send a notice to all employees advising them of the requirement and explaining why it is necessary, outlining your procedures for completing it, assuring them that the results will be confidential, etc.

What to Expect from the Workforce

Obviously, temperature checks are not a perfect measure. Some infected individuals may not have a fever. However, temperature checks are taking place in a lot of places these days. I fully expect to have my temperature taken when I go back to the gym and when I go to the airport again. If you are testing temperatures at your building and I am asked to come on-site to do training, then I will have a temperature check, too! There has not been a major revolt that I have heard of so far. However, that does not mean that there might not be one.

As you communicate with your unions, you might anticipate resistance from some groups. However, AFGE and NTEU have included temperature checks on their lists of what needs to be in place to return to work. In an article posted on the NTEU site dated June 4, 2020, the NTEU President suggested the Federal government could do more to protect workers by broadening testing capabilities and screening employees upon their arrival at the work site. AFGE has a return to work checklist, which includes 10 principles. Sixth on the list includes temperature checks upon arrival.

Alternatively, Fedsmill reported that the Federal Workers Alliance – representing 24 unions that form, in their words, “the core of the Federal employee labor movement” – listed their demands for returning employees to the workplace. (NAGE, POPA, IAMAW, and IFPTE are in this group). There are 11 demands, including requiring the wearing of masks, providing PPE for employees, on-demand testing by the “most reliable tests,” “immediate and thorough” reporting to employees that a person suspected of having the virus was in the workplace, etc. Checking temperatures is an obvious omission on this list.  Repeating what I said last month: None of us have experience with a situation like this. Please keep sharing your questions/issues. We can get through this more successfully if we put our heads together!

[Editor’s note: The EEOC has also released guidance on taking temperatures. We’ll discuss that during the virtual training EEO Challenges in a COVID-19 World: Returning to Work During a Pandemic on June 30.]

Failure to Follow Instructions: A Charge That Seems Particularly Fit for 2020

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By Barbara Haga, May 20, 2020

Ensuring that employees comply with work procedures and requirements has taken on a new characteristic with the pandemic. As agencies prepare to bring employees back into the workplace, there could be new problems with failure to comply with the precautions being set in place to try to minimize spread of the virus.  Let’s look at a couple of scenarios.

Back in the building after testing positive

Some of you who have been in classes with me have heard me use the phrase, “No good deed goes unpunished.”  Here’s an example: In this situation, the agency had done everything one could reasonably expect, but things still went wrong. An employee was working in an office job where they were still reporting to their building. The employee reported to duty exhibiting symptoms and was instructed to leave and get tested.  The employee tested positive for COVID-19.  Other employees in the area were instructed to leave and a deep cleaning was performed.  So far, so good.

That night, the employee came back to the building to pick up a laptop and files.  She said she wore a mask and used gloves and wiped things down that she touched while in the office, etc.  Management was furious.

At the time I spoke to the agency, I asked a lot of questions, such as whether the employee used public transportation to come back after the positive test result and whether the employee had contact with anyone else in the building such as security folks at the desk. I asked: Was there some critical deadline that the employee was trying to meet in spite of being ill, and did other people come into the spaces unaware that the employee had been back in there? Without that information, it is difficult to get terribly specific about a penalty.

Could you show that the employee failed to act reasonably under the circumstances? I think so.  Back to our discipline model from last month’s column, we need these things:

1- Establish a valid rule.

2 – Inform the employee of the rule.

3 – Prove the employee broke the rule.

Is it a valid requirement to send employees away from work if they appear to have the symptoms of COVID-19? Certainly. Would you have to have told the person to stay away as long as she was sick? I don’t think so.  That’s one of those commonsense rules that I think you could establish by referring to CDC guidelines, public service announcements, or something in your agency guidance. In this case, the employee told the agency that she was in the building, so proving that would be simple. Obviously, she knew there was risk; that’s why she volunteered that she wore the mask and gloves and wiped things down.

I wouldn’t expect, in this scenario, that an agency propose an adverse action, assuming the employee was an otherwise good employee.  Management was very unhappy that cleaning had to be done over and other employees’ work was potentially impacted by delays in returning to the workplace, but I’m not sure that would add up to enough under Douglas to outweigh a number of years of good service and potential for rehabilitation. [Editor’s note: It could be argued, however, that the harm, or potential for harm, of the employee bringing her known germs into the workplace outweighs the fact that she’s a good employee].

Refusing to comply with precautions

Your agency has set conditions that will allow employees to return to the worksite.  This includes, among other things, taking temperatures. These precautions are included in the CDC guidelines for businesses for reducing transmission of the virus in the workplace.

The EEOC guidelines on medical evaluation were updated in March to cover the COVID-19 situation. Here is the EEOC guidance:

During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever? 

Generally, measuring an employee’s body temperature is a medical examination. If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature.

However, employers should be aware that some people with influenza, including the 2009 H1N1 virus or COVID-19, do not have a fever.

Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.

Employees were notified of these conditions by e-mail and given a return to work date.  However, one of your employees reports, but refuses to have his temperature taken.  The rule was reasonable, it was communicated, and the employee refused to comply.

What kind of charge?

“Failure to follow instructions” is a charge that covers a variety of situations. It has been used when an employee failed to submit required medical documentation. Archerda v. DoD, 121 MSPR 314 (2014). It was sustained when an employee refused to report to a new duty station. Jones v. Department of Justice, 98 MSPR 86 (2004).  It has been used for situations related to misuse of credit cards, failure to cooperate in investigations, and many other things. This charge goes to the heart of the ability of agencies to direct work and the workforce.

In Pedeleose v. DoD, 109 FMSR 200 (2009), aff’d, 343 F. App’x 605 (Fed. Cir. 2009), the Board wrote about the charge of failure to follow instructions:  “The rule involved in this case has long been recognized as one that is necessary to an agency’s ability to effectively manage the workplace. The rule generally requires an employee to comply with an agency order, even where the employee may have substantial reason to question it, while taking steps to challenge its validity through whatever channels are appropriate.”

This charge seems like a good choice in both scenarios outlined. In the first scenario, the misconduct would all have been in the past, so that one is not as complicated.  For the second scenario, the employee won’t be allowed in the workplace without the temperature check.  What would the action look like? The employee would have to be sent home on admin leave just like any other situation where you have an employee who reports not ready, willing, or able to perform work. The admin leave would extend until you could get your notice of proposed action completed. At that point, the employee would be on notice leave while waiting for the reply and decision. Because the COVID-19 situation is an emergency, you could likely shorten your reply periods on short suspensions, which is where I am assuming most would be with this scenario.

Perhaps the employee will agree to the check after receiving a proposed action. If so, then you could take that into account and consider reducing the number of days of suspension or revert to a reprimand. You might really need the employee performing the work of the position so it may be in the agency’s interest to not suspend if the employee complies and shows potential for rehabilitation.

What if the employee continues to refuse? Take a second action for another offense. This one would probably be a proposed removal.

At FELTG, we realize many of you are being confronted with issues that none of us ever conceived of before. Please keep sharing your questions/issues. We can get through this much more successfully if we put our heads together!

Disciplining an Employee Who Shows Up at Work Sick in Today’s World

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By Barbara Haga, April 15, 2020

I’m going to take a break from writing about performance standards to deal with an issue that is relevant to things happening right now.

Telework is a wonderful thing for many people, and many agencies have work that can be performed remotely. That’s not the case across the board.  I sometimes think OPM loses sight of this when the guidance keeps talking about telework, telework with children in the house, and adjusting schedules for telework.  There are numerous jobs where telework is not an option. Law enforcement officers, medical staff who provide direct patient care, intelligence specialists, and many others still need to be at work. Their work is essential to maintaining law and order, the health and well-being of patients, and our nation’s security.

Obviously, these agencies must implement procedures and provide protective equipment to try to protect workers from exposure from patients and other people that they deal with while completing their duties, including their coworkers. But what if those procedures are ignored by the employees they were intended to protect?

An Enforceable Rule

Could there be anyone who doesn’t know that if you are sick you should stay home? It’s repeated everywhere. I would imagine that most agencies have put out guidance to that effect.  If your notice referenced OPM’s issuances, those refer to the CDC’s guidance. You don’t have to click too far on the CDC website to know to stay home. At the top of the page, there are two buttons, one of which is “what to do if you are sick.” Click there and it brings up a page that gives steps to follow if you think you are sick. The first is: Stay home except to get medical care.  It’s in public service announcements on television. The daily briefings from the White House talk about following precautions.

What happens if an employee ignores that guidance and comes to work showing signs of a respiratory illness? Maybe he thinks this is all overblown and not a big deal (and from the news it seems that there are people who believe that). Maybe she thinks that she is critical to doing what your agency does and it’s worth the risk. Maybe he doesn’t have any sick leave and can’t afford being without pay. What do you do?

Sending Employees Home

The CDC answered what employers should do if employees showed up with symptoms. OPM referred to that information in their guidance on 3/7/202 in section F of the Fact Sheet. The CDC says, “Employees who appear to have symptoms (i.e., fever, cough, or shortness of breath) upon arrival at work or who become sick during the day should immediately be separated from other employees, customers, and visitors and sent home.”  By the way, the EEOC said that was OK, too. The EEOC pandemic guidance was updated on March 21.

To get the person out, you can try to talk them into taking their own leave. If all else fails, you send them home on admin leave. If your agency chooses to follow up with an enforced leave action, that’s an option. Enforced leave, of course, requires that the agency provide the employee the notice-response opportunity required by the principles of due process found in 5 CFR 752. But what if management wants to take further action because the employee failed to follow the procedures in place and/or because of the risk to the organization that failing to do so caused?

Could the Employee be Disciplined?

I am not aware of anything that would stop an agency from taking action in these circumstances. I recently reviewed about 50 MSPB cases that included the term “communicable.”  There was nothing relevant to this type of case.  We have a novel issue to go with the novel virus.

How would it work? If you’ve been to FELTG training, you’ve seen the elements of discipline list. The steps are 1) Establish a valid rule, 2) Inform the employee of the rule, 3) Prove the employee broke the rule, 4) Select a defensible penalty, and 5) Provide due process.

Steps 1 and 2. We looked at the “enforceable” rule earlier. Your agency probably put out guidance. It may have said “Stay home if you are sick.”  If it didn’t specifically say it, that guidance may have incorporated the OPM information which referred to the CDC guidance. It’s in the media.  Remember that you can rely on some very basic common sense requirements like “you can’t stab anyone at work” even if you never set a policy about that.

Step 3. Could an employee credibly argue that she did not know that she should not come to work if she had symptoms of a respiratory illness? I think that would be a stretch. That would be particularly so if it involved people in the health care business, even including tangential jobs such as firefighters who are also EMTs, or housekeeping staff in a hospital.

Step 4. Select a defensible penalty. Under Douglas, you would talk about the nature and seriousness of the misconduct.

Here are some examples:

“You reported to roll call for your shift in the Fire Station exhibiting symptoms of infection, risking spreading the virus to all of the Firefighters and supervisors on your shift.  This includes 18 first responders, who are essential to fighting fires and providing emergency lifesaving to the facility and mutual aid to the surrounding community. Your misconduct could have led to this Station not being able to respond to fires and other emergencies, requiring more distant Stations to respond which would increase response times.”

“You reported to your office exhibiting symptoms of infection, risking spread of the virus to the five other IT Specialists on this shift who maintain the computer equipment that supports the Remotely Piloted Aircraft (RPA’s) unit on base.  If this equipment is not properly maintained by the IT staff, it could potentially mean that RPA’s would not be available to support intelligence missions.  If our base could not respond, other bases who are also dealing with the virus’s impact on their own manning would have to cover our missions.”

I think FELTG readers know what to do with Step 5.

The charge should be something akin to “Failure to Follow Instructions.” More to follow next month!

Generic Standards that Fail to Measure Performance Effectively

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By Barbara Haga, March 19, 2020

I’ve written about conduct issues making it into performance plans when those matters should be dealt with through other means, but there are other problems that we should address. This month, I’ll address generic standards.

I am not suggesting that agencies shouldn’t use generic standards. I am actually a fan of the concept – if they are written well. Unfortunately, there are a lot of examples of standards that are very difficult to use because they cover too much in one standard.

Here’s an example: In this system, the manager sets the elements and then applies these generic standards. So, the manager develops the “what” that’s being measured by these words. This is a Fully Successful standard that would apply to all jobs, no matter what the grade.

The employee demonstrates consistently successful performance that contributes positively to organizational goals. The employee effectively applies technical skills and organizational knowledge to deliver results based on measures of quality, quantity, efficiency, and/or effectiveness within agreed-upon deadlines, keeping the rating official informed of work issues, alterations, and status. The employee successfully carries out regular duties while also handling any special assignments and identifying opportunities to improve organizational operations/results that consider stakeholder perspectives. The employee plans and performs work according to organizational priorities and schedules. The employee communicates clearly and effectively and works effectively with others to accomplish organizational objectives.

Let’s review sentence by sentence.

The employee demonstrates consistently successful performance that contributes positively to organizational goals.

The first part just repeats the definition of Fully Successful. I’m not sure the second part is something for which we hold employees accountable. That’s on management to set measures that support agency goals.

The employee effectively applies technical skills and organizational knowledge to deliver results based on measures of quality, quantity, efficiency, and/or effectiveness within agreed-upon deadlines, keeping the rating official informed of work issues, alterations, and status.

This is the diamond in this standard.  This is what employee measures should have in them, and it should be universally applicable.

The employee successfully carries out regular duties while also handling any special assignments and identifying opportunities to improve organizational operations/results that consider stakeholder perspectives.

I would like to review this one in two parts.

I view the first part related to special assignments as a problem. First, just being on a special assignment shouldn’t be the measure. The quality of the work in that assignment is what should be measured. However, it should be measured based on the same criteria that apply to other assignments – applying technical skills and organizational knowledge and the other criteria in the second sentence. Secondly, special assignments shouldn’t outweigh the bulk of an employee’s work, which hopefully would be the normally assigned duties. And, often the employee has no control over what special assignments they are given. What we don’t want to create is perpetual volunteers who think that having some special project gets them a higher rating than the coworker who is plugging away doing the work of the unit. Third, not every job has these kinds of opportunities.  They may be jobs in remote locations, lower grade jobs, etc.

“Identifying opportunities to improve organizational operations/results that consider stakeholder perspectives” is written at a very high level. Not every employee is going to have these kinds of opportunities either.  It might be more reasonable to ask for well-thought out input regarding work procedures. That might be attainable for a lot more grades and types of jobs. You also want to qualify this, so it’s not just a lot of ideas, but they are ideas you could actually implement.

The employee plans and performs work according to organizational priorities and schedules.  

This one is reasonable for a lot of jobs that have the ability to decide what is performed when. However, lower-graded positions may have little control in this regard, so it may be difficult for the manager to use as a measure.

The employee communicates clearly and effectively and works effectively with others to accomplish organizational objectives.

Before jumping in with this portion of the standard, let’s think about designing elements that work effectively.  The way I explain it is that you would want to get all of the work that requires the same skills and abilities in one place.  You could have someone who is very good technically but whose writing and speaking skills are not very good. You could have someone who is very good technically who is a pain in the butt to work with.

I would suggest that you hold people accountable for these things but to do it in a separate element. There are two reasons:

  • A generic standard like this usually is applied to some technical aspect of a job. It’s common to see HR Specialists in our business with an element on ER work and an Element on LR work (I am not saying that’s good, but it’s common). With this element description, the manager would have to assess if the employee communicated effectively on ER matters and then separately address the effectiveness of LR communication, and then make that same assessment on all of the other elements. It makes it very tough for the supervisor.
  • The other issue I see with this is that the aspect of communicating effectively should really be critical by itself. Can someone succeed in our line of work if they can’t do these things? Isn’t that the issue that time and again we hear about from customers that HR doesn’t respond, doesn’t clearly explain, doesn’t provide options, etc. I doubt that HR is necessarily unique in this aspect of performance.  I would think that similar issues come up in other lines of work.

Our Employee Relations Week class June 15-19 in Denver, CO, will include much more discussion on writing good standards.