The news that the Department of Veterans Affairs has removed more than 500 employees in 2017 rekindled the age-old debate about firing federal employees. 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.
The Department of Homeland Security fired 1,825 employees in 2016 (1 in 105 or 0.95 percent). Most of the DHS removals were in TSA. DHS, VA and Commerce (1 in 134 or 0.75 percent) fire more people relative to their population than most agencies and departments. In fact, they are the only departments that fire more than 1 in 200 employees (0.5%) per year. If you take a look at the Fedscope data, you will find some agencies firing far fewer people. One department fired 1 in 613 (0.16 percent) employees, while another fired 1 in 2,181 (0.05 percent). 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 example, it is not uncommon for an employee who is about to be fired to resign. That means the number who are “fired” is probably higher than it appears. Agencies also deal with misconduct through other disciplinary actions, such as suspensions. That said, the number is almost certainly too low, because more than two thirds of federal workers do not believe their agencies do a good job dealing with poor performers.
No one knows what the right number is. In a perfect world, the right number would be zero. Agencies would hire great people who do great work, and the rare performance/conduct problems would be resolved before getting to the point of firing people. We all know that we do not live in a perfect world, so that is never going to happen. We also know that there are a lot of reasons why the government does not do a good job in this area. They include managers with inadequate training, a process that is cumbersome and takes too long, and agencies not supporting managers who actually want to deal with problem employees. We also know from the BLS numbers that the private sector, with far fewer constraints, is not firing massive numbers of people every year. If the government rate matched the private sector, we would expect to see about 25,000 people fired or laid off per year. Given the employee and manager perceptions about problem employees, it is safe to conclude that there is a backlog of poor performers who might be fired if it were easier to do so.
So how do you fix the problem? More importantly, how do you do it without politicizing the federal workforce and having federal employees becomes pawns in a political game? The VA Accountability and Whistleblower Protection Act of 2017 is not a bad start. I know there are folks who have concerns about the Act, but for the most part it is not bad legislation.
The federal civil service was designed with protections from arbitrary actions because it was, and is, in the best interests of the American people to have a government with qualified employees who are not hired and fired for political reasons. That was true when the Pendleton Act was passed in 1883 and it is still true today. But – like many things in Washington, something good can be bureaucratized into something bad. That is what I believe has happened with civil service job protection. It has become so difficult to deal with problem employees that many managers give up and many (71 percent) in the workforce do not see their agencies dealing with problem employees.
Like many federal workers, I have worked in agencies that had too many people who were ROAD – retired on active duty. In some cases the employees were reassigned multiple times in hopes that a miracle would occur and they would start performing. Their coworkers picked up the slack and did the work they should have been doing. No one was happy, except maybe the person who had did not have to work but still collected a paycheck. Getting those folks out of government would have been a service to the taxpayers and to their coworkers.
While the idea that federal employees cannot be fired is false, so is the idea that the process is working fine. It is not. I believe it is time to rethink the entire disciplinary/adverse action process government wide. The goal should be a government where good work is recognized, great work is rewarded, and poor performers and people with conduct problems either get better or get gone. Here are the core principles for a process that I believe would work.
- Due process is essential. Unless the law is changed to make federal workers completely at-will employees who can be fired for absolutely no reason, constitutional due process is required. There are a number of Supreme Court decisions that support the idea that when a government hires someone who can be fired only for cause, the job becomes a property right and due process is required to take it away. Changing feds to at-will employees who could be fired for no cause at all would be a practical and political mess that, in time, could result in having the equivalent of 2,000,000 political appointees. I do not know anyone who thinks the solution to our government’s problems is having a lot more political appointees.
- Time does not equate to due process. Providing more time to do everything does not protect an employee’s rights. The time limits in the VA Accountability Act are reasonable. In fact, the one change I would make in those time limits would be for MSPB. I would prefer to see the MSPB process cut in half. Keep in mind that every time MSPB concludes that an agency fired an employee without good cause, the employee gets back pay. That means it is in the government’s interest to get a quicker decision. There is no way MSPB could issue every decision in 3 months or less without additional staff. Because it is obvious that dealing with poor performance and misconduct is important, the Congress should appropriate additional resources to enable MSPB to meet a much tighter time limit on the appeal process.
- The burden of proof should generally be “a preponderance of the evidence.” That simply means there is more evidence that the employee committed the offense than evidence that s/he did not. It is not unreasonable to expect an agency to prove its case to that level. Agencies win the vast majority of MSPB appeals with that burden of proof, so there is ample evidence that agencies can meet that burden. The VA Accountability Act reduced the burden for VA to “substantial evidence.” That change may make it more likely that problem employees will be fired. If it does so and does not result in the appearance of unfair treatment of employees, Congress may extend the lessened burden of proof to other agencies. I doubt we will see the lessened burden used to fire employees who have not committed a firing offense. The government experience with employees who can be fired with virtually zero burden (probationary employees) is that not many are fired.
- Some offenses should be mandatory removal offenses (MROs). I know there are folks who hate the idea that some offenses will get you fired, but the truth is that absent MROs, some managers simply do not have the will to fire an employee. Having MROs does not remove the requirement for due process, but it does simplify the process and reduce the impact of ineffective managers. I recall one case of a bus driver who tested positive for cocaine. Most reasonable people would agree that we do not need bus drivers who use cocaine. Apparently his supervisor disagreed. He suspended the employee for 3 days and two of those days were Saturday and Sunday. The employee lost one day of pay and continued to drive his bus. I believe there are offenses that should get you fired. Lying on the application you used to get hired, using illegal drugs, stealing from the government, and committing a prohibited personnel practice are just a few examples. We can make the argument that we should help people improve, but do you want to be sitting in the bus that is being driven by the cocaine-using driver?
- Neither MSPB nor arbitrators should be able to mitigate penalties. Mitigating a penalty means the arbitrator or MSPB judge concludes that the agency proved its case, but does not agree with the penalty. So a removal may be mitigated to a 30-day suspension. In some cases, an agency may have charged an employee with multiple offenses, but can only prove some of them. The Board or arbitrator is left to decide what the appropriate penalty would be for the charges that are proven. The problems with mitigation are that it substitutes the hearing official’s judgment for that of the agency and that it leads to baby-splitting decisions. That is particularly true with arbitration, where arbitrators who are viewed as too pro-management or pro-union will have trouble being selected to hear a case. Most agency tables of penalties lay out a wide range of penalties for a given offense. As long as they stay within the range of penalties they lay out in their own policies, I believe the agency should be able to decide on the penalty. We trust agency leaders to spend billions of dollars and carry out missions that are critical to our nation. We should also trust them to decide whether an employee gets fired or is suspended for a month.
- Employees should have one venue for appeal. An employee should be able to appeal to MSPB, file an EEO complaint, or go through the grievance/arbitration process, even in mixed cases where an employee alleges both discrimination and is appealing an adverse action. Employees should not be allowed to forum shop or file through multiple processes. The time limits that apply to MSPB should apply to arbitration and EEO complaints as well.
- Every manager should receive extensive training on dealing with employee misconduct and performance issues. The typical 40 hour supervisory training course is inadequate to meet the need. Such training should include showing managers how to have conversations with employees to provide feedback, including discussing performance or conduct problems. People who have never been in supervisory jobs think doing that is easy. It is not, and many supervisors have no idea how to have that kind of conversation.
- Agencies should have a dedicated office to set policy on misconduct/performance and to coordinate among the offices that get involved in these matters (HR, EEO, Counsel and IG). The processes in many agencies have so many hands involved, and so many people who are afraid to lose a case, that getting action taken is often too hard to do. Frequently managers who want to deal with problem employees tell me that they simply give up when they cannot get all the parties to agree to do something. I would put in in the CHCO’s office, but it probably does not matter where such an office is located, as long as it actually has the authority to get things done.
The issue of firing federal workers is not simple, nor does solving the problems mean we will suddenly have more effective government. It would most likely have a somewhat positive impact on morale, due to getting non-performers and disruptive people out of the workplace. On the other hand, it could have a negative impact when employees see their friends being fired. As I have said before and must say again, dealing with the problems does not address the 90+ percent of employees who do their jobs and do them as expected or better. We cannot lose sight of that. If we truly want more effective government, we need to spend more time on the people who do the work.
It is also likely that simplified due process, once the HR/Counsel/EEO/IG offices and managers adapt to it, could lead to a surge in removals. If there truly is a backlog of performance/conduct problem employees to be dealt with, it would be a surprise if that did not happen. Once that backlog is taken care of, it would also be logical to expect a drop-off in the number of actions being taken, with the number of removals then leveling off at a higher rate than it is today.