By Ann Modlin, November 13, 2024
Quick facts:
- Agencies are often risk-averse when it comes to holding employees accountable for performance or conduct.
- Balance the employee’s impact on the agency mission against litigation risks.
- Explain to managers the pros and cons of moving on an employment action.
Empirically, it is just as easy to say “yes” as it is to say “no.” The word “yes” has three letters. The word “no” has two letters. Both are one syllable. The extra letter in “yes” is not a game changer.
If that is true, why do we regularly hear managers say things like this?
- “We wanted to remove the employee for 60 days of AWOL, but counsel said no.”
- “My employee is performing at an unacceptable level, but HR said no to putting them on a PIP.”
- “The employee already has a letter of reprimand and a 14-day suspension, but my personnel attorney said no to removal on this latest misconduct matter.”
My first reaction to comments like this is to shake my head and empathize. The government, and not any individual, is on the hook for liability in a losing case. But agencies are bizarrely risk averse. Even a litigation loss, which does not happen often, is not impacting on anyone financially. Why the fear?
The optimist in me is hopeful that perhaps, just perhaps, advisors need a change in mindset. Try saying “yes” instead of “no.”
Here are some things for advisors to contemplate.
- If a manager is coming to you about a problem employee, presume that the manager is dealing with a legitimate problem. The employee is negatively impacting the mission. Trust managers. Listen to them. Avoid knee-jerk reactions.
- Do not dwell on the one case the agency lost in 2006 when considering an employment matter in 2024. Figure out what went wrong in that 2006 loss and avoid doing that in 2024. But do not just say, “No, remember that 2006 case!”
- Presume the employee is going to litigate. They have many ways to challenge adverse employment actions. So, prepare to win the litigation. Too often, the “no” answer is an effort to avoid litigation. I get it – litigation is hard. However, agencies win around 80% of the time at the MSPB and 97% before EEOC Administrative Judges (at least that was the number in 2020). Litigate. Win.
- Trust your managers. They are the ones dealing with the problem employee every single day. Figure out how to help them. Get to “yes.”
- Try to understand the negative impact of bad employees on a mission as much as you understand the risks of litigation.
- Keep in mind, too, that counsel and HR specialists are advisors. Embrace that role. Tell managers the pros and cons of moving on an employment action, but stop defaulting to “no.” If they say they want to take the action, help them do everything correctly. (After all, OPM’s comments on 5 CFR § 752.403 regulations say that agency supervisors make these decisions after consulting with agency advisors.)
Advisors, try to switch your mindset. Break the habit of saying “no.” Use your great skills to put the agency on the path to win the employee’s challenge. “Yes” is not just easy to say and to do! And that’s Good News. modlin@feltg.com
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