OPM’s Telework Guidance is Thorough and Surprisingly Progressive

The Office of Personnel Management’s June 23 guidance on telework provides a thorough Q&A that addresses telework, remote work, and the pay implications of both. It does not break new ground on pay, but does include a remarkably progressive position that I applaud OPM for staking out. More on that later in this post.

One of the clearest distinctions that OPM addresses is the difference in telework and remote work. As OPM makes clear, they are completely different and choosing one or the other has significant implications for agencies and workers.

Telework is the traditional work-from-home arrangement many agencies and employees have used for years. With the agency’s approval, the employee works from home some days and may be required to be in the office on others. Locality pay is determined based on the employee’s official duty station. That means someone who works for an office in DC gets paid the DC locality rate. Agencies can decide how many days of telework are appropriate, and may revoke the arrangement if needed due to business reasons or employee issues. Many of the processes for telework are typically subject to collective bargaining in agencies where employees are represented by a union.

OPM reiterates the idea that telework can be situational and such occasional telework may require approval every time the employee teleworks. Routine telework is a recurring arrangement where “employees typically telework on some days and work at their agency worksite on other days during each pay period. They must obtain managerial approval for the schedule (and any modifications to it), but do not need to obtain additional separate approval for each day they telework.” They also make it clear that telework is not an entitlement, saying “telework is a strategic management tool and workplace flexibility established to facilitate the accomplishment of work, while balancing the needs of the workforce.”

In addition to telework, OPM discusses remote work, where an employee agrees to work from home or another location. OPM describes it as “a special type of alternative work arrangement by which an employee is scheduled to perform work within or outside the local commuting area of an agency worksite and is not expected to report to an agency worksite on a regular and recurring basis.”

There are implications of both remote work and telework that should be considered before entering into an agreement to do either. For example, employees with a signed telework agreement are typically required to work when their office is closed due to weather conditions (such as snow days in the National Capital Region). Remote work may also have pay implications. Locality pay is determined based upon an employee’s official duty station. As OPM makes clear, an employee who works remotely in a different locality area is paid using the pay table for that remote work location. If your agency is based in DC and you work in Topeka, you will be paid the Topeka locality rate.

Agencies that agree to remote work should also pay for the cost of a computer and other resources that are needed when they advertise positions as being eligible for remote work. They are not required, however, to pay relocation expense if they approve an employee request to work remotely in a different commuting area. The agency may find itself on the hook for those expenses if they decide to revoke the remote work agreement.

Remote work has enough complexities that OPM plans to issue more detailed policy guidance, saying “OPM will be publishing a Remote Work Guide to further explain the implications, considerations, and strategies for the appropriate use of remote work.”

The most progressive idea in OPM’s guidance covers child care and telework. At the height of the pandemic we know there were employees who were working and caring for children at the same time. When I commented on that in an interview on National Public Radio, quite a few people said I was wrong – that it did not happen and it was a violation of policy. The reality is that it did happen. In the midst of a pandemic when people were on lockdown, travel was limited, schools were conducting classes virtually, and child care facilities were closed, there were a lot of people who had no child care available and were faced with the choice of taking all of their leave, leave without pay, or just making the best of it and working and caring for children.

In a surprisingly progressive move, OPM put bureaucracy aside, recognized that situation and addressed it in their guidance. They said “An agency that has a general bar on teleworking when there are young children or other persons requiring care and supervision by the employee in the home should reevaluate that policy in light of its experience during the pandemic.”

They went on to say ” In many instances, these policies assume a rigid adherence to specific work hours. Agencies may want to consider offering teleworking employees with dependent care responsibilities a maxiflex work schedule, which is a type of flexible work schedule (FWS) that, when combined with telework, provides the most flexibility to employees who need to address the dual demands of work and caregiving, as well as other personal responsibilities. Providing teleworking employees with flexibility concerning their hours of work may allow them to meet the obligations of their job while teleworking even while also having child care or other family- related responsibilities. Where the agency mission requires more rigid work schedules (for example, where coverage of specific customer service shifts is required), agencies may choose to adjust their policies to allow telework on an exceptions basis, such as when normal caregivers are not available (due to a short-term illness or school closure). Under such an exception policy, a teleworking employee would be expected to account for work and non-work hours during their tour of duty and take appropriate leave (paid or unpaid) to account for time spent away from normal work-related duties (e.g., to care for small children).”

The pandemic has shattered much of the management mythology regarding telework and remote work. Managers who refused to admit that telework can work for many jobs had to ask those same workers to carry out the agency’s mission from home for an extended period. They learned where it really can work, and what accommodations must be made to make it work. They also learned where telework is not ideal. OPM’s embrace of maxiflex as a tool for making work and child care arrangements more flexible is a great step in making telework available to more people and offering a benefit that many employees are demanding. It has the potential to make the federal government a more reasonable employer in a labor market that is becoming far more competitive. That is a good thing.

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.