The Complete Guide to Hiring and Firing Government Employees

Stewart Liff

• Publisher: AMACOM
• Year: 2009
• ISBN:
  9780814414514
• Topic: Business
• Subtopic: Management
• Index: Business

Not only does government bureaucracy often make hiring a cumbersome, slow-moving process, but poor performers enjoy more protection from losing their jobs than their counterparts outside of government. With over thirty years' experience as a federal government employee, insider Stewart Liff offers a solution to the government talent shortage--enabling government managers to cut through the red tape and take advantage of the best government employees out there. The Complete Guide to Hiring and Firing Government Employees also teaches readers the equally important skills of efficiently documenting and dealing with those who don't make the cut to ensure your team starts and stays strong. You'll discover: how to take an anticipatory approach to recruiting; how to decide who to target, and where and how to advertise for open positions; how to screen and interview candidates; how to counsel a poor-performing employee; how to use progressive discipline; how to document a case and write a charge; how to develop internal political support; and much more. Bringing the best new people on board and weeding out the worst are both the most important and the most difficult tasks faced by any employer. For federal managers, the challenge is even greater. Filled with tried-and-true strategies, this step-by-step guide will equip you to continuously uphold, strengthen, and even grow an entire department of high achievers.

SECTION
2

HOW TO FIRE A GOVERNMENT EMPLOYEE

CHAPTER
5

HANDLING POOR EMPLOYEES

WE JUST SPENT four chapters talking about how to hire government employees and now we have come to the flip side: how to fire them. As managers, we spend so much time trying to hire the right people you would think we shouldn’t have to then fire some of them, but the reality is that sometimes we must. It may be because we made a bad choice or it may simply be that events occurred (either personal or professional) that changed the person and made him a less-than-productive employee. Regardless of the reason, odds are there is going to come a point where you should remove a bad employee. It is as simple as that.

You may not like to do this; in fact, nobody does. However, the cost of allowing a bad employee to linger in your organization can be astronomical. Maybe not right away, but as time goes by, other employees will get the message that poor performance or conduct is acceptable and some will begin to slow down. Others will start to behave in a less-than-optimal manner, and many of your best employees will leave—for the simple reason that they do not want to work for an organization that tolerates poor employees. Moreover, if supervisors also conclude that there is no point in dealing with problem employees because upper management will not support their decisions, they will stop taking action and simply sweep all of the problems under the rug, which will compound the problem even further.

Unfortunately, the perception and, to a large extent, the reality seems to be that government employees are invulnerable. That is what my friends in the private sector have told me and that is what I have heard from many less-than-satisfied colleagues in the public sector. They all believe that the government’s personnel systems simply make it too difficult to fire an employee, which causes the government’s supervisors to follow the path of least resistance (e.g., either looking the other way when someone performs or behaves poorly or moving the employee around without dealing with him).

The public perceives, at least to some extent, that government employees are lazy, are overpaid, have too much job security, and collect a pension that is disproportionately high when compared with the private sector. The following blog post is reflective of that perception:

Let’s fire every government worker from the smallest village receptionist or sewer worker to the staffers of the highest Senator and every menial clerk and recalcitrant paper shuffler in between.

It’s not just pique at the famous laziness of a government worker and it’s not just the fact that the only reason they got their jobs is because they are pals with one politician or another. It’s not just that they are better paid than just about any real American in the private sector—whether they deserve it or not—and it’s not because they are impossible to fire, nor is it because they get a better pension and health care than anyone who really contributes to society . . . well, OK, it is because of that stuff. All that stuff and more.¹

Unfortunately, far too many government employees seem to share this perception. For example, according to the U.S. Office of Personnel Management (OPM) 2007 annual employee survey, only 39 percent of the employees surveyed either strongly agreed or agreed to the following statement: “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve.”²

There are several reasons why so many people believe that poor government employees are not held accountable. The most obvious is that too many bad employees have been allowed to skate by and this lack of inaction has not gone unnoticed. I have certainly seen this throughout my career, as have many other government employees, the media, and people in the private sector.

The more important questions are why has this happened, and what can be done to change the way that the government holds its employees accountable? Let’s examine each question in more detail.

Why Does the Government Not Deal with Poor Performers as Frequently as It Should?

One of the major differences between the public and private sector is that government employees have far more protection from losing their jobs than their counterparts outside of government. Let’s take a brief look at how these protections developed.

History of Employee Protections in the Civil Service

As I described in Chapter 1, the modern civil service system can be traced to the Pendleton Act of 1883, which marked the beginning of the end of the spoils system and the establishment of the merit system for hiring federal employees. While the Pendleton Act changed the way in which many government employees were hired, it did not provide government employees any significant protections from unjust removals.

A breakthrough occurred on August 24, 1912, when in response to injustices to postal service employees during the Taft administration, Congress passed the Lloyd-LaFollete Act. This act “began the process of protecting civil servants in the United States from unwarranted or abusive removal by codifying ‘just cause’ standards previously embodied in presidential orders. It define(d) ‘just causes’ as those that would promote the ‘efficiency of the service.’ ”³ Prior to this act, there was no such statutory prohibition on the federal government’s authority to remove a federal employee, and an employee could be discharged with or without cause for conduct. The act was passed after the Roosevelt and Taft administrations prevented federal employees from communicating with Congress without prior authorization.

The Veterans’ Preference Act of 1944 provided veterans with notice and appeal rights in matters of employee discipline and removals. The act established that a veteran could not be removed, suspended, or demoted without good cause and without first receiving written notice of the charges, an opportunity to respond, and thirty days’ notice. The veteran then had the right to appeal his termination to the Civil Service Commission.

Another major change occurred in 1962 when President Kennedy issued Executive Order 10988, which established a uniform set of policies on labor-management relations that for the first time applied to all departments and agencies. Prior to that, although unions had existed for many years, the federal government did not have a consistent set of policies for dealing with them.

Kennedy’s order reiterated the importance of employee participation in the development of personnel policies, declared that employees have the right to join or not to join unions, and required that management negotiate with unions on a variety of issues.

That same year, Executive Order 10987 gave nonveteran employees the same appeal rights that the Veterans’ Preference Act of 1944 had established for veterans. The order required all federal organizations to establish internal appeals procedures enabling employees to request an internal review of proposed adverse actions before appealing to the Civil Service Commission. From that point on, nearly all federal employees had the right to appeal such actions as removals and suspensions to the Commission.

According to the OPM,

The Intergovernmental Personnel Act of 1970 substantially increased the role of the Federal Government in advancing merit systems of employment at the State and local levels. The Social Security Act amendments in 1940 required State and local governments to establish merit systems in their agencies that would receive Federal grants under various programs. Over time, the requirements for merit systems extended to additional grant programs of other Federal departments and agencies.⁴

In 1972, Congress enacted the Equal Employment Opportunity Act, which directed the Civil Service Commission to bring the federal civil service into line with the precepts of equal employment opportunity (EEO). Subsequent amendments to the act

created the Equal Employment Opportunity Coordinating Council (EEOC), composed of the Civil Service Commission, Equal Employment Opportunity Commission (EEOC), and the Departments of Labor and Justice. The EEOC took on the task of trying to create a single set of employment guidelines that would provide consistent selection guidance to employers, both private and public. The basic premise of the guidelines was that employers could not use any employment selection procedure that had an adverse impact on any ethnic or racial group.⁵

Six years later, Jimmy Carter signed the Civil Service Reform Act of 1978, which abolished the Civil Service Commission and established the OPM in its place. The act also established the Federal Labor Relations Authority (FLRA) to oversee the federal government’s labor relations program and the U.S. Merit Systems Protection Board (MSPB), which adjudicated employee appeals. One significant component of the MSPB included the special counsel, which became responsible for investigating and prosecuting charges against a federal official for violating the merit system.

The Civil Service Reform Act also transferred responsibility for equal employment opportunity to the Equal Employment Opportunity Commission (EEOC). The EEOC “assumed responsibility for enforcing anti-discrimination laws applicable to the civilian federal workforce as well as coordinating all federal equal employment opportunity programs.”⁶

One of the features of the act was to make it easier to deal with problem employees. For example, it clarified the grounds for taking action against poor performers or employees who committed misconduct. It also reduced the grounds for appeals of adverse actions that had built up over time.

For example, prior to the act, employees had to go through several levels of appeals on certain actions, and it took a long time for appeals to move through the system. The new act provided that those issues eligible for appeal could go only to the MSPB, where specific timelines were imposed for resolving appeals.

Under the old system, employees could file appeals on many grounds that went beyond actions for poor performance or misconduct. For example, employees often appealed a reduction in rank, meaning that they believed that management had reduced their rank or stature within their organization. The new act eliminated these types of appeals and restricted appeals to primarily adverse actions stemming from unacceptable performance or conduct.

The act also made it easier to remove poor performers. It accomplished this by requiring agencies to prove a performance-based case only by substantial evidence (“that degree of relevant evidence which a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree”⁷), whereas in any other case (e.g., misconduct), an agency would have to prove its case by a preponderance of the evidence (“The degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue”⁸), which is a higher standard.

In 1989, Congress passed the Whistleblower Protection Act, which was designed to protect federal whistle-blowers. This legislation amended the Civil Service Reform Act and made it easier for whistle-blowers to prove retaliation, and it required corrective action whenever whistle blowing was a contributing factor in a challenged personnel decision.

The Whistleblower’s Act also made the special counsel independent from the MSPB and made the special counsel responsible for protecting federal employees, who believed that they suffered retaliation for blowing the whistle on wrongdoing in their agencies. It enabled whistle-blowers to take their cases to the MSPB and seek corrective action.

Under President Clinton, reinventing government was implemented through the National Performance Review (NPR). One of its chief objectives was the abolishment of the Federal Personnel Manual (FPM), which many had long viewed as inhibiting management from taking appropriate action. However, the NPR did not change the basic procedures that federal managers had to follow in order to take performance- or c...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Introduction
• Section I: How to Hire a Government Employee
• Section 2: How to Fire a Government Employee
• Notes
• Index