Category Archives: Labor and Employee Relations

3 Ideas for Dealing with Problem Employees

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Three recent publications raised the issue of dealing with problem employees. The Office of Personnel Management released the results of the Federal Employee Viewpoint Survey, highlighting the perception among employees that their agencies do not do enough to deal with problem employees.  The House Committee on Oversight and Government Reform released a report, Tables of Penalties: Examining Sexual Misconduct in the Federal Workplace and Lax Federal Responses, that addressed inconsistencies in and among agencies on dealing with problem employees, in general and specifically on the issue of sexual misconduct. The Merit System Protection Board released a study on performance management, Building Blocks for Effective Performance Management, that focused on the relationship between the agency’s “Agency Performance Management Environment” and employee performance and the ability to deal with poor performers. The MSPB report made the news because of a singe sentence that said having a small number of employees removed for poor performance could be a good sign. That statement was not the point of the report.

The three reports addressed the government’s ability to deal with problem employees, but from different perspectives. The OPM FEVS report simply reported the data. In one of many questions, it showed that employees generally do not believe their agencies do enough to deal with problem employees. (For more, click here.)

Do you agree with the author’s 3 ideas? Which do you think would be most helpful at the agencies you have worked for?

 

 

What’s Next for Federal Unions?

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It is safe to say that unions have become a more partisan issue. Democrats generally like them, Republicans generally do not. It is likely we will see some changes that affect both the representational aspects of labor relations and the institutional issues that affect the unions themselves.

 The institutional issues relate to how unions get the resources they need to effectively represent employees. The two biggest factors are official time and dues withholding. In recent years there have been proposals that would eliminate the ability of employees to sign a dues withholding form to have dues taken from their pay. The alternative would be to use allotments or to have people pay the unions directly. There are a lot of reasons why proponents think it is a good idea, but the bottom line is it would make it harder for unions to get money.

The second institutional issue is also a representational issue – official time. Official time is the time union stewards and other officials use for representational issues. It is time on the clock and the taxpayers foot the bill. OPM reports the cost at more than $150 million per year. Because official time is typically under-reported, the actual cost is likely higher than that. (For more, click here.)

Do you agree with the approach recommended by the author would “work for the agencies, work for the employees, and work for the taxpayers”? Why or why not?

Fixing Federal Labor Relations: Office Time May Not be the Biggest Problem

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The Incoming Trump administration says it will address the widespread abuses in official time by Federal labor unions. House and Senate Republicans have long said that Uncle Sam should not be completely subsidizing employee unions as is the current case.

 Agency representatives would agree that limiting or eliminating official time for employee representatives would be a step in the right direction, but that at least four other issues in the current labor relations system are of equal or greater importance in making government work at all, much less more efficiently and effectively. (For more, click here.)
Do you agree with the author that the four issues listed in this article are a significant hindrance to making the government work more efficiently and effectively? What would you add to or subtract from the list?

Fixing Federal Labor Relations: A Statutory Markup for Change

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For 43 years, I’ve represented Federal Agencies in unit determination, negotiability, unfair labor practice, arbitration, mediation, impasse cases and at the bargaining table for both term and I&I frequently as a chief negotiator. I still bargain and am involved in cases as an advisor.

 I like to think Albert Einstein was right when he said, “the only source of knowledge is experience”. Well, I’ve experienced way too much of the labor statute and the many problems it has created for Agencies attempting to deal with it. The statute says, “the provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government.”
The last and other Federal Labor Relations Authorities (FLRA) in their expansionist philosophy have done everything but … (For more, click here.)
Which of the changes to 5 USC 7103-7134 suggested by the author do you believe would help support efficient and effective government? Why?

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

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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

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In this FedSmith.com 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

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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

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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

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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

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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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