Is it Probation if No One Gets Fired?

The recent news about the Department of Veterans Affairs needing a do-over on its downgrading of Senior Executives who were charged with misconduct is the latest chapter in an ongoing story about accountability for federal workers. The VA story highlights the difficulty the government has with getting leaders to take corrective actions based on performance or misconduct.

VA is not alone – the Federal Employee Viewpoint Survey has shown for years that federal workers do not believe their agencies do a good job of dealing with poor performance and misconduct. In the most recent survey, only 28% agreed that their agencies took steps to deal with employees who cannot or will not perform.

The common argument is that it is close to impossible to fire a federal employee, so few federal managers go to the effort to do it. While I certainly do not believe wholesale firings are the solution to government’s problems, it is clear that more has to be done to hold federal workers accountable. For most employees, that would not be a threat. In fact, it would be a welcome change. When an employee does not perform, coworkers have to pick up the slack. Failing to deal with problem employees shifts the burden from the poor performers to the good performers. Asking the good employees to do the work of the bad employees, knowing the agency is unlikely to do anything about it, is a form of employee abuse that needs to stop.

The VA example shows that agencies have trouble even when there is clearly no regulatory or legal obstacle to dealing with the problem. Another much better example is the probationary period. Federal employees serve a 1-year probationary period after promotion to a supervisory position, a new appointment or appointment to the Senior Executive Service. The probationary period is the final step in the examining and appointment process and has existed since the merit-based Civil Service was created by the Pendleton Act in 1883.

Probationary employees can be fired (if probation is based on a new appointment) or demoted (if probation is based on becoming a supervisor) with little recourse. The process is simple, does not present any paperwork burden, and does not result in lengthy appeals. There is little cause for a manager to be afraid of the repercussions of taking an action on a probationary employee. So – how many people are removed or downgraded during probation? GAO reported in February 2015 that 58 supervisors were downgraded during probation in 2013. The percentage of employees fired during probation has historically been low. In fact, the Merit Systems Protection Board reported on the issue a decade ago. MSPB found a number of barriers to effective use of probation, including training for managers and lack of leadership support for dealing with poor performers.

Even with the lack of effective use of the probationary period, we continue to see interest in extending existing probationary periods. Should we expand something that does not appear to work? I think the answer is yes. In fact, I would go farther than the proposals to expand the existing probationary periods and add an additional requirement for probation for people who are newly promoted.

There are many problems with how the government has implemented and used probation, but that does not mean the concept of a probationary period as a final step in the examining process is a bad idea. In fact, it is was a good idea when it was first implemented by the Pendleton Act and it is an even better idea today. The hiring process has become so reliant on badly designed applicant questionnaires and falsified applications that agencies having a period of time to verify that new hires can actually do the job is critical. What we need is expanded probationary periods and far better implementation of them so they actually help weed out problem employees before they become entrenched in the Civil Service.

Expanded Probation

A single year of probation is not adequate for most jobs. It is wholly inadequate for supervisors and members of the Senior Executive Service. A new supervisor or SES who serves a single year of probation may never have to administer a performance rating cycle, complete a significant initiative, deal with problem employees, or complete any other long-term task their positions are designed to do. That means their agencies have to make a decision to retain them based on an incomplete picture of how they are doing. The probationary period for new supervisors and the SES should be expanded to two full years. In addition, probation for new appointees at the GS-11 or GS-12 level and above should be expanded to two years as well. Positions at lower grade levels typically do not have the type of long-term execution challenges that supervisors, executives and employees at higher grade levels face, so an extended probationary period at those grades is unlikely to uncover any additional performance issues.

In addition to expanding existing probationary periods, I recommend the Congress add an additional 1-year probationary period for any employee who is promoted. We have all seen examples of employees who are doing well until they are promoted beyond their level of competency. Much like the other probationary periods, promotion probation would extend the examining process so managers can see how an employee will do at the higher grade. If an employee fails during probation, s/he could be returned to the prior grade level where performance was acceptable. That is a far better solution than promoting employees to their level of incompetency and then leaving them there.

Better Management of Probation

Expanding probation to include promotions and extending it for others is not enough to make probation an effective tool. Many supervisors are not aware of when probation ends for the employees, do not believe their agencies will support them in taking action against a probationary employee, fear EEO complaints, and generally do not understand the process. All of those are fixable. Agencies can do better training for supervisors. They can simplify internal processes for taking actions during probation, and they can grant more authority to supervisors to take those actions. Chief Human Capital Officers and Inspectors General should be tasked with identifying internal process and cultural barriers and reporting them to agency heads.

Another issue that needs to be corrected is the automatic process for concluding probationary periods. Currently the probation ends and employees become permanent if the agency does not take action to terminate or downgrade them. That process must be changed so an agency is required to make an affirmative decision retain the employee. Supervisors should be required to not only make that decision, but also to sign a statement that the employee is performing at least at the fully successful or equivalent level, and that s/he has not been pressured by any official of the agency to make that retention decision.

Much Better Than the Alternatives

I know there will not be a lot of people who like the idea of expanding and extending probation. The alternative is to do nothing, or to pass the kind of legislation some are pushing that would undermine civil service protections for all employees and move government closer to an “at-will” model. The risks of that (a spoils system) are far greater than the risks of expanded probation. Expanding and actually using probation is something that can work, does not endanger the Civil Service, and should bring more accountability.


Are Federal Executives Overpaid? SES Facts and Myths

iuThe Washington Post reported yesterday on the Obama Administration’s upcoming proposals to revitalize the Senior Executive Service (SES). Among other things, the Post says the President will propose more mobility (within government and between government and the private sector and academia) for SES members, a simplified application process to encourage candidates to apply for SES positions, and a gradual increase in pay for SES members. The proposed changes are the result of months of work by a group of two dozen people assigned to a Presidential task force that looked at the SES and changes that should be made to improve it. I believe they have developed a set of sound proposals that will result in positive changes. They will not solve every problem, but they are realistic and are a good first step.

Whenever anyone writes an article on the SES, I hear a lot of complaints, both in favor of and opposing changes to any aspect of the SES. So – I thought it might be helpful to address some of those issues and do a little “myth busting” on the subject, while also offering some facts about the SES.

SES Facts

  • Based on OPM’s Fedscope data, in June 2015 there were 7,723 members of the SES. Of those, 6,927 were career, 706 were non-career (political), 82 were limited term, 1 was Limited Emergency, and 7 were listed as “unspecified”
  • 5,056 SES members are men (65.5%), 2,667 are women (34.5%). Overall, the federal workforce is 56.75% male and 43.25% female. In 2013, OPM reported that the SES is 80% white.
  • 75% of SES are located in the Washington, DC area
  • The average pay of the career SES is $171,565, while the average for non-career (political) is $161,885. The maximum salary for an SES in an agency with a certified SES appraisal system is $183,300. In agencies without a certified appraisal system, SES pay tops out at $168,700. In the Washington, DC locality area, GS-15 pay tops out at $158,700
  • SES pay is tied to the “Executive Schedule” which is used to set pay for senior political appointees. $183,300 is Level II of the Executive Schedule.
  • There is no locality pay for SES
  • The average length of service of career SES is 23.2 years. For politicals it is 7.9 (some politicals have prior non-political civil service or creditable military time)
  • Regardless of length of Service, SES members receive 26 days of annual leave per year.
  • Veteran preference does not apply to the SES

SES Myths

  • SES members are overpaid. It is true that $170K or more is a lot of money, but relatively speaking, it is not too much for the level of responsibility that many SES members have. Compared to private sector salaries, SES pay is not excessive and for many SES positions it is too low. That does not mean there are no overpaid SES. Some agencies have SES positions that have very little policy, management or budget responsibility. It is likely that those positions are overpaid. The solution is a comprehensive review of SES positions that would most likely result in a reduction in the number. A reduction of non-career (political) SES positions would also make sense.
  • SES are paid overtime and/or comp time that substantially increases their compensation. SES are not eligible for overtime pay or compensatory time off.
  • SES have special retirement benefits. SES are covered by FERS (or the old CSRS), just as any other federal employee. They do not receive any special benefits or eligibility.
  • SES cannot be fired. Much like the myth that other federal workers cannot be fired, this one is simply untrue. SES can be fired and can easily be forced to accept a geographic move or face removal. What is true is that agencies rarely use their authority to fire SES. From FY2010 to June of this year, 4,780 SES left federal service. Only 33 were fired for disciplinary or performance reasons. That number most likely understates the number of SES who are pushed out for performance or conduct reasons. When an agency turns up the heat on an SES who is eligible to retire, the result is often a quick exit. The perception that it is too hard to fire SES members is one reason agency leaders rarely do it – they believe the myth too. While changing the SES to at-will employment as some have suggested would risk returning to a spoils system for senior executive positions, some changes to the processes for taking disciplinary and performance actions, coupled with a streamlined appellate process that guarantees appeal to the full Merit Systems Protection Board, could be a worthwhile reform.
  • SES positions are easy to fill. That was true in the past. Agencies advertising SES positions would receive an ample number of highly qualified applicants for most SES jobs. That is becoming less true today. As SES members are drawn into the political fighting in Congress, targeted by name when issues arise, and have bonuses eliminated or reduced, more and more high potential GS-14 and 15 candidates are choosing not to apply. Combine that with the already low number of non-government applicants and the result is a shortage of good candidates for many jobs.
  • Agencies pick anyone they want for SES positions. All new SES selections have to be approved by an independent OPM Qualifications Review Board with members from other agencies. OPM QRBs can and do reject selections.

The premise that SES positions in general are overpaid is not supported by facts. An interesting and informative comparison is the historical pay difference between today’s GS-15 and the SES and the predecessor GS-16, 17 and 18 “Supergrades” and GS-15 positions at the time the Supergrades existed. Forty years ago, the 1975 GS pay tables show a pay range of $31,309 to $40,705 for GS-15 and a range of 36,338 to 48,654 for GS-16, 17 and 18. In other words, Supergrade pay ranged from 89% to 120% of a GS-15, step 10. Today, SES pay ranges from 77% to 116% of a GS-15, step 10. If SES pay today matched the historical levels, the pay range would be $141,243 to $190,440 rather than $121,956 to $183,300. Raising the bottom of the range so we do not have SES that earn less than many GS-14s and raising the top of the range to provide more of a pay difference between SES and GS-15, step 10 makes a lot of sense. The Administration can effectively raise the bottom of the pay range through policy decisions, but they cannot change the top of the range without legislation.

Given the critical role most SES positions play in their agencies, it is in the interest of the American people to have the most capable senior executives possible. Addressing the pay issue is a good step that could be combined with legislative changes that would also make individual SES members more accountable for performance and conduct. Whatever happens, changes to the SES must ensure we are able to recruit and retain the caliber of executive talent the government needs and maintain a merit-based SES.