Should the Government Fire More People and How Should They Do It?

Does the government fire enough people? Does it deal effectively with poor performers? Is the disciplinary and adverse action process effective?

At the risk of offending a few folks, I have to say the answer to all three questions is probably no. The government does not fire a large percentage of its employees in a typical year. The data is available in OPM’s excellent Fedscope tool. In Fiscal 2016, the number fired was 10,519. At the end of fiscal 2016 the government had 2,097,038 employees, so roughly 1 in 200  or 0.5% of employees were fired. If we look only at permanent employees, 9,579 of 1,951,334 employees were fired (1 in 204 or 0.49%). The VA fired 2,575 employees (1 in 145 or 0.69 percent) in FY2016.

Direct comparisons to the private sector are not easy, but if we compare the Bureau of Labor Statistics (BLS) “layoff and discharge” rate we see that the private sector lays off or fires about 1.2 – 1.3 percent of employees. Government rates (adding in the small number of RIFs as well) are much lower than that of the private sector. However, the private sector numbers are lumping layoffs and discharges together, most likely because the line between those is often blurred. Companies often characterize removals as layoffs, while the government does not.

It is important to note that firing people is not the only measure of how agencies and companies deal with poor performance and misconduct. For more, click here.

Do you agree with Jeff Neal’s core principles for a governmentwide disciplinary/adverse action process? Why or why not? What would you add or subtract from the process?

Effective Management Requires Effective Discipline

In this article, the author states that “Corrective discipline should be the goal is most cases. [Discipline] is not intended to resolve severe or chronic cases of poor performance or misbehavior and to replace punitive actions when necessary. Nevertheless, when the [corrective discipline approach] is applied judiciously and appropriately, time and money can be saved and organizational goals can be enhanced.” For more on this important subject, click here.

Probationary Periods: A Missed Opportunity to Address Poor Performance

In its recently released report on poor performers in Government, the Government Accountability Office (GAO) recommended more effective use of the probationary period to identify and remove individuals who are unlikely to be good performers. GAO recommended that agencies consider doing more to ensure that supervisors have the opportunity to intercede before an individual completes a probationary period and that OPM and possibly Congress consider whether longer probationary periods might be appropriate for some positions[1].

MSPB’s extensive research over the past decade supports these recommendations. In a 2009 survey, we asked proposing and deciding officials for adverse actions whether the individual in question demonstrated during the probationary period that he or she was a good employee. Only 56% of those with knowledge of the individual during that period agreed the individual had shown good signs at that time. Thus, it appears that some of these adverse actions could have been avoided by better use of the probationary period.

We also conducted a survey of supervisors of probationary employees, discussed in our 2005 report, The Probationary Period: A Critical Assessment Opportunity. Of those supervisors who admitted that they would not select the person again if they could do it over, ….

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4 Perceptions (and Realities) about Federal Adverse Actions

Perception 1

It is impossible to fire a Federal employee.

Reality: From FY 2000-2014, over 77,000 full-time, permanent, Federal employees were discharged as a result of performance and/or conduct issues[1].

Perception 2

Agency leaders have no authority to serve as proposing or deciding officials in title 5 adverse actions.

Reality: Title 5 empowers the agency to take an adverse action. If agency leadership chooses to delegate the proposal or decision authority to lower levels, then it cannot interfere with the decision-making process of those delegees. But, prior to the assigned decision-maker’s involvement in a particular case, current statutes permit delegations to be abandoned or modified at will by the agency[2].

Perception 3

There are no legal barriers to firing an employee in the private sector.

Reality: Many of the laws that apply to removing employees in the Federal civil service also apply to private sector employment or have a similar counterpart, such as the Civil Rights Act of 1964 (Title VII – Equal Employment Opportunity), and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), both of which permit private sector employees to pursue litigation[3].

Perception 4

An agency must pay a salary to an employee who has been removed until any appeal has been resolved.

Reality: An employee is not paid while appealing his/her removal to MSPB. If the action is found to have been unwarranted, then reinstatement and back pay may be awarded. But, there is no pay while removed[4].

Reprinted from Issues of Merit, a publication of the Office of Policy and Evaluation, U.S. Merit Systems Protection Board.



[1] Analysis of data from U.S. Office of Personnel Management, Central Personnel Data File (CPDF), FY 2000-FY 2014.

[2] Goeke v. Department of Justice, 122 M.S.P.R. 69, ¶ 23 (2015); see Boddie v. Department of the Navy, 827 F.2d 1578, 1580 (Fed. Cir. 1987); Ward v. U.S. Postal Service, 634 F.3d 1274, 1279 (2011); 5 U.S.C. § 7513.

[3] See 38 U.S.C. §§ 4301-4333 (USERRA); Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, § 706(e)-(g) (authorizing discrimination litigation in Federal courts).

[4] See 5 U.S.C. § 5596 (b)(1)(A).

Effective Performance Discussions: Don’t Forget to Look Forward

Much of the guidance on performance evaluation focuses on measurement— developing standards of performance, evaluating performance against those standards, and documenting the results. Performance evaluations matter greatly to employees as a factor in pay decisions and as a lasting reflection of the organization’s valuation of employees’ work contributions. Thus, it is important that they be done carefully rather than casually.

Performance evaluations and performance discussions should not focus exclusively on the past. The purpose of performance evaluation—and the employee-supervisor discussion of an evaluation—is not merely to look back. It is also to look forward—to think about what should be done to sustain or improve performance. Indeed, one of OPM’s warranty conditions for a performance management program is “commitment to… conscientious development of employees.” That look forward should include both performance (What results do we want?) and the person (What skills or support does the employee need to achieve those results?). …

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Improving Performance: The Role of Contextual Behavior

In good times and in tough times, Federal agencies need employees to direct their capabilities, energy, and effort towards more than just their core job duties. Mission success requires that employees also recognize—and seize—opportunities to support the agency in ways not necessarily specified in their position descriptions (PDs) nor tied to their formal job tasks. Indeed, agencies need employees to think and behave “outside the box” of formal job tasks and to do, support, or help with what needs to be done in the name of broader mission accomplishment. Agencies need employees to direct their effort towards both task and contextual performance.

What are Task and Contextual Performance?

Employees’ performance at work can be divided into task and contextual performance[1]. Task performance is the “meat” of an employee’s job: the technical, core duties that directly feed into creation of an organization’s products and services. Meanwhile, contextual performance behaviors are the “gravy” or those employee actions that season the work environment where task performance occurs. In essence, contextual performance behaviors make the work environment more conducive to the generation of task performance. There are five general categories[2] of contextual performance behaviors: …..

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Leaders: “Recognizing” Employees Requires More Than Just Knowing Who Works for You

Results of a 2012 American Psychological Association (APA) survey of working Americans indicate that feeling valued was a key driver of engagement and job performance[1]. For example, among employees who indicated that they were valued, 93% agreed that they were motivated to do their best at work and 88% reported that they felt engaged. In sharp contrast, employees who thought they were not valued indicated agreement levels of only 33% and 38%, respectively, to these same questions about motivation and engagement.

MSPB’s research confirms that appreciation is similarly important to Federal employees and Federal agencies. Our analysis revealed that employees who believed that their effort would result in higher performance and that they would receive recognition for that performance were more likely to perform well[2].

For these reasons, appreciation and recognition for a job well done are more than a matter of courtesy. Unfortunately, the trend in Federal employees’ experience of recognition is not positive, …..

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The How and Why of an Effective Performance Improvement Plan

As explained in our [MSPB’s] 2009 report, Poor Performers and the Law, title 5 of the U.S. Code currently provides two avenues by which agencies can demote or remove poor performers. The first avenue is codified in Chapter 43, while the second is in Chapter 75. Chapter 43 requires that agencies offer assistance to employees in an attempt to improve their unacceptable performance prior to implementing a performance-based adverse action[1]. Chapter 75 does not require agencies to provide such assistance. However, under Chapter 75, an adverse action’s reasonableness depends, in part, on the extent to which the employee was on notice of the required behaviors[2]. Therefore, a performance improvement plan (PIP) and a reasonable period of time to improve under the plan is necessary under Chapter 43, and can be helpful under Chapter 75.

An effective PIP will typically: …..

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Did any of this content surprise you? Have you seen it put into practice? What would you emphasize if you were advising a supervisor on the use of a performance improvement plan?

Good Customer Service or Pre-Selection?

In a recent article, Steve Oppermann discusses the Office of Special Counsel’s  successful prosecution of two HR specialists who were accused of engaging in a prohibited personnel practice (PPP) by attempting to help agency management pre-select a candidate for a vacancy. Mr. Oppermann discusses the fine line HR professionals walk line between providing good customer service and abetting management’s efforts to commit a PPP, adding that that it is hard to fault a manager for wanting to consider an employee who has done an excellent job for her/him.  In this fine article, Mr. Oppermann provides analysis of the decision and points out issues that HR specialists should be aware of as they perform their responsibilities as the day-to-day “gate-keepers” of Title V with their role as management consultants.

Office of Special Counsel Prosecutes HR Specialist for Allegedly Helping Agency Management Pre-Select a Candidate

What do you think?

P.S.  A followup article was also published regarding this Office of Special Counsel decision.

Office of Special Counsel Prosecutes HR Specialist for Allegedly Helping AGency Management Pre-Select a Candidate: The Sequel