At-Will Federal Employment? Welcome to the World of Fact-Free Government

I have read several recent pieces debating the idea that federal workers should be “at-will” employees who can be easily fired when their bosses want them gone.

One piece by a former Trump appointee argued that people who believe a return to at-will employment would bring back the spoils system are ignorant of history, and that our current system is not accountable to the public. It goes on to assert that job protections are not required if merit-based hiring rules are in place.

Attacking the other side as ignorant of history is an interesting approach, but it is based on a selective reading of history that ignores facts that do not support the at-will employment position. Insisting that federal workers are not accountable because few get fired is another argument that appears to be based on cherry picking to find the points that support the position and ignore much of the remaining data. Proponents of at-will federal employment also typically argue that all Executive powers are vested in the President and any limits on the ability of the President to fire people are unconstitutional.

Let’s take a look at these arguments, why they are wrong, and the logical consequences of giving the far-right advocates of at-will employment what they want.

The case for at-will employment begins with the idea that we had at-will employment for six decades after the Pendleton Act eliminated the spoils system. That is only partially true and ignores some key facts. We can skip past the part where we point out that much of that same era also saw women not having the right to vote, Jim Crow laws, rampant discrimination, the Teapot Dome corruption scandal, the 1929 stock market crash and the Great Depression, and other examples of how the good old days were not so good. The truth is that the Pendleton Act did not eliminate the spoils system. It only started the process. The career civil service originally covered only about 10 percent of the workforce. It took many years for the career civil service to replace the spoils system.

I was surprised to read a piece by a Trump appointee claiming that taking care of the front door (hiring) means you do not have to give people protection from removal at the back door. Surprising because the Trump Schedule F executive order specifically exempted Schedule F hiring from the normal competing hiring process, saying “Placing these positions in the excepted service will mitigate undue limitations on their selection. This action will also give agencies greater ability and discretion to assess critical qualities in applicants to fill these positions, such as work ethic, judgment, and ability to meet the particular needs of the agency. These are all qualities individuals should have before wielding the authority inherent in their prospective positions, and agencies should be able to assess candidates without proceeding through complicated and elaborate competitive service processes or rating procedures that do not necessarily reflect their particular needs.”

The at-will argument is also based on the idea of a strong unitary Executive with all executive powers vested in the President. The unitary executive debate is one that began at the constitutional convention and has continued ever since. Is it correct? The only way to know is for the Supreme Court to take it on directly. They have not done so in more than 230 years, and in recent years have sidestepped fights between the Legislative and Executive branches, so I doubt they are looking to jump into it today. The fact that it would eliminate pesky little things like due process for federal employees, whistleblower protections, independent agencies, and decades of precedent, and that it would create the worst constitutional crisis in our history and likely cause the Congress to go to war with the Executive branch (remember – Congress can defund the entire White House staff and shut down the government) also support the position that the Supreme Court is unlikely to take it on.

Setting aside the consitutional debates, let’s address the basic question – is it too hard to fire federal workers? Maybe, but that is not the underlying cause of poor performance and misconduct not being dealt with. Take the example of probationary employees. Removing a probationary employee requires no effort, is instant, and provides virtually no appeal rights. It is, for all practical purposes, at-will employment. So we should see lots of employees fired during probation – right? Nope. It does not happen. Few employees are fired during probation. The problem is poorly selected and trained supervisors who get little support from HR, their General Counsel and agency leaders. I have fired quite a few people over the years. If you want to do it and have a good reason, it is certainly doable. The solution is to have better selection and training of supervisors and to narrow the options for appeal rather than trashing the entire merit system.

Then there is the idea that government is worse than the private sector because the private sector can fire people easily. Really? Tell that to companies that get sued when they fire someone. Ask them why they “lay off” someone they want rid of and give them severance rather than firing them. Ask them if they think firing a lot of people is a win, or a sign that their hiring practices are so bad that they are having to get rid of people whose hiring cost them a small fortune. The argument that firing people makes for better organizations is based almost entirely on the idea that managing by fear is good and that employees who are afraid they will lose their jobs work harder.

What a lot of this boils down to is that some political appointees get angry when they do not get their way. They do not want to career civil servant telling them something is illegal. The idea that federal workers do not support the President sufficiently, and that is the reason the President and his/her appointees should be able to get rid of them, seems to ignore the oath of office taken by every federal worker. “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

I guess I missed the part of the oath where they swear allegiance to the President. Federal workers are responsible to the Constitution of the United States. They must follow that founding document, our laws, and existing regulations. They work for the people of the United States. When the President or a political appointee tells them to do something that is illegal, the proper response is to say no. Almost every political appointee has an experience where s/he asks that something be done and a career employee tells them it cannot be done because it is not legal. The normal response is to say “OK – what can I do?” The previous administration obviously skipped that part of the lesson. Political appointees in every administration I have experienced routinely say they valued the career workforce and wished they had learned sooner that they can trust them. The Trump administration is the only one where I have not heard that from appointees.

So what happens if the advocates of at-will employment get what they want? And they combine it with appointment processes like those in the now-dead Schedule F?

Regardless of what those folks say, a spoils system will quickly re-emerge. We already see big donors in both parties routinely rewarded with appointments. At the end of the Trump administration we saw political allies being appointed to dozens of positions. Does anyone really believe politicians are not going to surround themselves with their supporters?

President Theodore Roosevelt said in 1885 “The government cannot endure permanently if administered on a spoils basis. If this form of corruption is permitted and encouraged, other forms of corruption will inevitably follow in its train. When a department at Washington, or at a state capitol, or in the city hall in some big town is thronged with place-hunters and office-mongers who seek and dispense patronage from considerations of personal and party greed, the tone of public life is necessarily so lowered that the bribe-taker and the bribe-giver, the blackmailer and the corruptionist, find their places ready prepared for them.”

What happens if we ignore the lessons of history? Imagine an administration that has the power to eliminate any civil servant. The administration does not like the unemployment numbers, because they make the President look bad. They can just get rid of the career data experts at the Bureau of Labor Statistics and replace them with political hacks who will do as they are told. Don’t like the Census numbers? Dump the professional career staff and replace them with people who will count the way they want the count done. Want to award contracts to your buddies? Dump the contracting officers and replace them with people who will do what they are told.

So much public policy depends on objective, factual data, that we cannot continue to function as a democracy if we allow politicians to wave their royal scepters and eliminate any federal workers who displease them and do not conform to their wishes, regardless of their legality.

In President Roosevelt’s 1885 piece, he also said “Dishonest politicians, and foolish men who are not dishonest, but who are never willing to see good done in a practical manner, always try to belittle the effects of the civil service law.” He went on to say “The weak-kneed man, or the man discontented with present conditions on mere theoretical grounds, sometimes rails at the law because it does not work perfectly in all cases. This is, unfortunately, true…. The thing to be done is, not to rail at the law because it fails to work faultlessly, but to strive to perfect it, to enlarge the scope of its activity, and to limit even further the number of cases where it may fail to do the hoped-for good.”

The spoils system was eliminated because of human nature. That has not changed since 1883. Power still brings out the best in some people and the worst in others. Give a President unlimited power and s/he will take it. And remember that any power you give to a Republican you also give to a Democrat. Unless the intent is to seize and hold power forever, every administration would have the power to wipe out thousands of federal workers who refuse to bend the knee. If they found people were hired by and loyal to a former President from another party, they would be fired. Government would be whipsawed between the parties, making the rabid partisanship we see today even worse. Do we want to give them that kind of power? I don’t know about you, but I prefer a President, not an Emperor.

Can Federal Managers Adapt to a Hybrid or Remote Workplace?

Agencies are developing plans for returning federal workers to the office. What that looks like is still undecided. Government, like the private sector, is likely to see a variety of practices that are dependent on agency mission, type of work, and agency culture. The issue of the pandemic and employee safety is still first and foremost in the mind of many people.

In the private sector we see companies trying different approaches. Apple announced they are moving to a 3/2 hybrid, with employees in the office three days per week and at home two days. Apple also specified the days employees will be in the office, choosing to bring everyone in on the same days. Apple CEO Tim Cook said ““For all that we’ve been able to achieve while many of us have been separated, the truth is that there has been something essential missing from this past year: each other. Video conference calling has narrowed the distance between us, to be sure, but there are things it simply cannot replicate.” Employee complaints about the new policy quickly leaked. Other companies are making full-time remote work available to many employees, while some are planning to bring most workers back to the office. It is likely that the ability to work remotely will be a bargaining chip for workers whose skills are in high demand.

We should expect to see similar issues in government as agencies make and execute plans. I don’t expect every agency find the perfect solution the first time out. They have a lot to learn to operate in a new environment. We may see hybrid workplaces become the norm for many employees. If that happens, how will managers who have been trained and operated for years in an in-person environment change their approach?

One of the areas that will be of interest to everyone is performance. How do agencies monitor employee productivity? How do they ensure taxpayers are getting what they pay for from people who are working at home? For some work it will be relatively easy. Outputs are easy to measure. For others it will be more of a challenge because their work is not so easily quantified.

Some people will look at that challenge and argue that the government should not continue with expanded telework. The argument might make sense, unless we look at the challenges with monitoring and evaluating performance that agencies faced prior to telework. Does a manager whose direct reports are working remotely know what they are doing every minute of every day? No. Does the same manager have that knowledge when s/he is in an office and the direct reports are down the hall in the same building? No. We generally don’t do a great job of handling performance. Agencies struggle to measure outputs regardless of where workers sit. They also still have a one-sided approach that evaluates what is expected of employees but doesn’t include what is expected of the agency and it’s leadership to facilitate employee performance. It’s no surprise that performance rating processes do not have the confidence of employees. In the 2020 Federal Employee Viewpoint Survey (FEVS), 32 percent did not agree that “Managers communicate the goals of the organization.” Only 51 percent agreed that “In my work unit, differences in performance are measured in a meaningful way.”

Those numbers actually improved during 2020 (while 59 percent of respondents in the FEVS reported they teleworked full time) at the peak of the pandemic. While it is true that the respondents skewed to higher grades and supervisors were disproportionately represented, the numbers tell an interesting story. It appears that the adaptations to remote work caused more communications. Agencies should use that knowledge and take deliberate steps to increase communications between supervisors and employees, and to facilitate more communications among employees who are working remotely. That means more than just Zoom, Microsoft Teams, and other video conferencing software.

Such a change is likely to require agencies to deploy better technology for communications and for performance management. Many agencies do not have significant automation in the performance management process. They do not provide an easy means of providing frequent feedback to or from workers. Performance information during the rating cycle is kept in unofficial files, many of which are paper, during the year and only recorded as a mid-cycle review or annual rating. Few agencies provide an easy means of employee recognition of their colleagues’ achievements. That should change.

Another challenge agencies will face is building teams where many or all team members work remotely. During the pandemic that was not so much of a problem because agencies had an existing workforce where people knew one another and had worked together. Bringing new hires into a remotely managed organization will require new approaches, and will require more deliberate efforts to build teams. That is likely to be done through training, technology, work practices, and other means that facilitate team building. Some agencies have a head start because they are very good at onboarding, introducing new staff to the organization, and building a strong organizational culture. Others hire people and leave it up to them to make their own way. In a remote organization that simply isn’t going to work.

One last issue to consider is morale. Who works remotely and who doesn’t is going to be a morale issue. Part of the problem is that many people simply cannot do it. Their work requires their presence and there is no alternative. An aircraft mechanic who works in a Navy Fleet Readiness Center is not going to take parts home to do work. There are hundreds of thousands of employees who are similarly prohibited from doing work from home because of the nature of their work.

Then there is the issue of safety. With the pandemic easing, but not gone, many workers simply do not feel safe getting in a room full of people, particularly if a third of those people choose not to get a vaccine. That concern about safety has to be recognized and considered. If employees feel they were forced back to the office and do not feel safe, morale will suffer.

I have also heard conflicting arguments about a “haves and have-nots” workplace. Some people believe the people who work from home are the “haves” and the rest are the “have-nots.” Others say the people who work remotely are the “have-nots” because they will be out of sight and out of mind and may find they are at a disadvantage when it comes to availability of information, work contacts, and promotions. The fact that such diametrically opposed opinions exist, and that both views have merit, makes it likely that morale is going to be an issue that is hard to solve. The fact that many people who can telework are in higher grades and many who cannot are in lower grades is likely to build resentment and add another dimension to the have/have not issue.

Leaders who have spent an entire career working in a different model will have to find ways to deal with the real and perceived safety, equity and productivity issues. They will have to accept that the workplace people return to is not the one they left before the pandemic. People have found other jobs, new employees have been brought on board, and the world has gone through one of the most catastrophic events in our lifetimes. The anti-telework crowd who have fought telework for years cannot simply put people back in offices the way it was before. It is not happening.

Everyone will have to adapt to a labor market where some employees who do not get the working arrangement they prefer will have far more options to go to work elsewhere to get what they want. Those are challenges most federal managers have not faced before. They will get some help from OPM and their own agencies, but re-entry into the workplace needs to be managed carefully, it needs to be done with an eye toward flexibility and willingness to change as they learn what does and does not work, and it needs to accept that one size definitely does not fit all.

I think Apple CEO Tim Cook made a good point when he talked about what is missing when people work remotely – the random discussions that produce ideas, teamwork, and a sense of being part of an organization. It may be possible to replace that with a technology solution, but if the most valuable tech company on the planet does not see it happening today, there is a good chance they are right. When I talk with people who have worked remotely for years, more often than not they have mixed feelings about it. The convenience is great, but spending your day staring at a screen rather than interacting with people in person does not work for everyone. That is why I believe purely remote work is not the best model for most agencies. A hybrid that requires most people to work onsite at least part of the time is the probably the best solution for today.

As the workplace evolves, we may find ways to allow more employees to permanently telework full time. For now, the reality is that full-time telework does not work for every job. It is also reality that the federal workforce is a political punching bag for some folks and they would like nothing better than a chance to argue that federal teleworkers are not producing. It is not true, but without solid performance data agencies will have trouble rebutting that argument and it will be used against people who are working from home. Agencies that get it right will land in a new normal where far more federal workers have the flexibility to choose a workplace. If they get it right, and the government is able to demonstrate that it can accomplish as much or more as it did pre-pandemic, widespread telework will be here to stay. If not, don’t be surprised if the new normal starts reverting to the old normal, with the 2022 and 2024 elections presenting more opportunities to use federal workers as political pawns and remote work becoming more of a partisan issue than a management issue.