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. The FEVS data is always a good starting point for identifying general trends in the perspectives of federal workers. The House report focused on misconduct, with particular emphasis on sexual misconduct, and on the issue of the use of tables of penalties and the broad discretion supervisors have in determining an appropriate penalty/remedy for employee misconduct. The House report said some agencies do not have a table of penalties, some tables have not been updated for decades, the tables vary widely from one agency to another, and the range of penalties (reprimand to removal) for some offenses potentially leads to disparate treatment for similar offenses. Beginning with the FEVS as an indicator that failing to deal adequately with problem employees is something real, I am going to focus on the latter two reports, and what they may tell us.
Let’s start with the House report. It makes some very good points, but also misses some nuance. For example, the idea that an agency might not have a table of penalties may be surprising to some readers, but there are actually many people who think it is better if an agency does not have one. When I arrived at DHS as the Chief Human Capital Officer, I was surprised to learn that DHS HQ did not have a table of penalties. That was because the lawyers hated the idea and said it would limit the discretion of managers and create problems on appeal. Other lawyers and employee relations professionals disagree with that perspective, as does the House Oversight and Government Reform Committee. Even in agencies that have a table, the range of penalties for many offenses is “reprimand to removal.” That means the same offense can result in a slap on the wrist or the administrative version of capital punishment. That may sound a bit crazy, but there are some legitimate considerations that need to go into determining an appropriate penalty/remedy. Chief among them is a list called the “Douglas Factors.” The 12 Douglas Factors are the result of a 1981 MSPB decision in Curtis Douglas vs. Veterans Administration and are those that MSPB “generally recognized as relevant” in determining the appropriateness of a penalty.
One problem with the discretion offered by broad ranges of penalties is that neither supervisors who are proposing or deciding on discipline, nor employee relations professionals who are advising them, have the data to compare a given problem employee with others across the agency. They also sometimes consider things that are not relevant, such as their personal feelings about the employee. That may mean discipline that is too harsh for someone the boss hates, and a slap on the wrist for a favorite employee. Neither of those is fair. I have seen cases where supervisors simply did not want to take action against employees who were their friends. In one case, the agency not only did not want to take disciplinary action, they actually wanted to promote a man who was guilty of sexual harassment of multiple women. The extremes are not the norm, but they are common enough to create problems.
The House report clearly favors using a table of penalties that is specific, does not have overly broad discretion and is updated regularly. That is probably not a bad idea, if the first and last requirements are met. Limiting discretion in table of penalties may also be a good idea, but the truth is that the penalties outlined in a table of penalties are guidelines, not mandates. At the Defense Logistics Agency, we changed our table to mandate a lengthy suspension for the first offense of a positive drug test. Not long after, a field activity suspended a bus driver for three days (including a Saturday and Sunday), after he tested positive for cocaine. We had clearly communicated our intent, our zero tolerance for illegal drug use, and the minimum penalty for a positive test, but the supervisor and manager still had (and abused) the discretion to do something else. Clearly, better tables of penalties in the existing environment will not be enough to make a big difference.
The MSPB report focused on performance, rather than misconduct. MSPB looked at the relationship between the Agency Performance Management Environment (APME) and employee performance and the ability to deal with poor performers. MSPB found a strong correlation between the APME and both the incidence of poor performance and the ability of agencies to effectively deal with poor performance when it occurs. MSPB said “The data show that whether a supervisor is attempting to improve a poor performer, remove a poor performer, or assist a weak performer who has not outright failed in a critical element, a strong APME is helpful.” The data showed correlation between the APME and perceptions of:
- Having fewer poor performers
- Having fewer weak performers
- Being able to identify why a person’s performance was poor
- Being able to identify how to improve the poor performance
- Being able to bring about the necessary improvement in performance
- Being held accountable for addressing poor performance and
- Receiving the necessary support from higher–level managers
That makes sense. An agency that values performance and invests in building a strong performance culture is far more likely to have it. I think a study focusing on misconduct would most likely have similar findings. MSPB’s report also discussed using the number of people fired for poor performance as a proxy to measure the effectiveness of agency performance management. They concluded that, because poor performers are far more likely to leave voluntarily than to be fired, the number fired is a poor measure. I tend to agree, but I also believe the same is true in the private sector. Another telling finding in the MSPB report is “Of those respondents who reported they had supervised a poor performer within the preceding 3 years, 42 percent of respondents who reported a strong APME reported the belief that they could remove a poor performer, while 31 percent of those who reported a moderate APME and only 20 percent who reported a weak APME reported that they believed they could remove a poor performer.” When only 42 percent of supervisors in agencies with a strong APME believe they can remove a poor performer, we have a problem.
So – employees want their agencies to do more to deal with problem employees (based on FEVS responses), the congress wants agencies to do the same, and the majority of supervisors in the even the most effective agencies do not believe they can remove a poor performer. What would doing better look like, and how could agencies go about doing it? The MSPB study offers a good starting point. Agencies must invest in training supervisors, provide adequate resources to organizations, and set realistic performance standards. Those requirements can apply to conduct as well. That gets an agency half way. The other half is the hard part. I believe getting there will require some steps that can be taken now, without asking congress to completely rewrite the laws on dealing with problem employees. Here are three steps that could help:
- Get better data. Most agencies have very little usable data on employee misconduct and poor performance. The HR systems agencies use typically allow the agency to report on personnel actions – things such as demotions, removals, resignations and suspensions. They also provide for reporting on final performance ratings, but not the details of the ratings. There is typically no data on actions that are in process, and no ability to compare the action taken in one case to a proposed action in another. Absent that data, agencies will have a hard time improving employee accountability processes. There are tools available to provide the data, but most agencies do not have them.
- Reduce the discretion delegated to proposing and deciding officials on appropriate penalties. In addition to simplifying the tables, agencies should consider using a more narrow range of options for disciplinary actions. I have seen agencies suspend employees for two days, five days, eight days, or any other number of days someone decides might work. What is the difference in offenses that would make one worthy of a six day suspension, and another worthy of a seven day suspension? Another problem with suspensions is the threshold for having appeal rights to MSPB is 15 days. Employees cannot appeal a 14-day suspension. Why would an agency do a 15-day suspension rather than a 14-day suspension? I suggest having eight possible disciplinary actions that can be taken: Reprimand, one day suspension, one week suspension, 14 day suspension, 30 day suspension, 60 day suspension, a downgrade and a removal. Delegations of authority to proposing and deciding officials should specify the types of disciplinary actions they can take, and give them no authority to deviate from those. To complement this change, no table of penalties should provide a range greater than three of the authorized disciplinary actions. For example, reprimand to one week suspension would be an acceptable range, but reprimand to removal would not be. Many tables of penalties already follow a similar pattern. The big change for those agencies would be reduction of the range of penalties and the more restrictive delegation of authority.
- Change agency delegations of authority to shift the responsibility for proposing and taking formal action on misconduct from first level supervisors to an agency office focused on professional conduct. By creating an office that has the authority and responsibility to conduct investigations and take disciplinary actions, agencies could shift the responsibilities of supervisors to focus on performance. When an allegation of misconduct is made by a supervisor or other person, the allegation would be investigated and appropriate action taken. Such a change could reduce inconsistencies, ensure more complete investigations of misconduct, ensure that proposing and deciding officials have experience in dealing with misconduct, and make it possible for employees to report misconduct they observe.
The pressure on agencies to do more to deal with problem employees is not going away. As agencies see reduced budgets and the reductions in staff that accompany them, problem employees will put even more of a burden on the employees who come to work every day, do a good job, and act responsibly. Dealing with that very small number of problem employees can help productivity and morale, and it can be done without extreme changes to the structure of the civil service.