Adverse Action

or the typical federal manager, the prospect of dealing with a poor-performing employee means a frightening trip through a mind-boggling procedural maze. In the past, that meant many supervisors simply chose to ignore workers who weren't pulling their weight. As recently as 1996, a Merit Systems Protection Board survey found that in the previous two years, 28 percent of supervisors had avoided taking an adverse action that they thought was warranted.

The 1978 Civil Service Reform Act incorporated changes designed to make it easier for managers to remove poor performers, but most supervisors still feel the system frustrates their efforts to act. With affected employees having access to multiple dispute resolution forums--each with several review levels--managers tend to think the process is weighted in favor of the employee. Supervisors dread the time required to rehabilitate or remove a poor performer, and many fear retaliatory charges of discrimination if they do take action.

David Orr, a federal human resources expert who teaches at the Office of Personnel Management's Management Development Centers, senses managers' discontent in his classes. "Some of them get so frustrated, they just won't take action. Some of them say, 'I won't even start the process, because I know it's going to take too long.' "

But with almost every federal agency under orders to downsize, managers no longer have the luxury of keeping poor performers on the rolls in the hope that their co-workers will pick up the load. Tolerance for bad apples is decreasing and the number of employees being dismissed for poor performance is on the rise.

Daunting Process

Some managers, of course, never have let the process of taking adverse action against employees scare them. One Social Security Administration manager, who has managed a staff of 40 to 50 people for 20 years, says her willingness to demote or fire poor performers has resulted in several hearings before the Equal Employment Opportunity Commission and various arbitrators. To date, none of her decisions has been overturned. "I have been lucky so far," she says. "But I made sure that the performance expected was clearly communicated to the employee, documented in writing and that the employee got a copy. When employees weren't doing well, I told them what they needed to do to improve, and I offered them remedial training."

Lately, however, this manager feels stymied. Three years ago, her agency eliminated all numeric standards for individual employees' work performance and adopted a pass-fail appraisal system. She thinks these changes will further complicate the process for pursuing poor performers and make her more hesitant about taking action.

P.J. Winzer, director of the MSPB's Washington, D.C., regional office, says she has been confronted with six or seven cases of unacceptable performance since she started working as a supervisor in 1980. In only one case did an employee appeal Winzer's action. In that instance, Winzer says, her personnel office proved instrumental in "holding her hand" through the process. Winzer's decision was upheld, and life went on in the office.

"Every now and then, you get an employee that the job just doesn't fit," she says. "It doesn't mean that they won't be good at another job. They just aren't good at the one they're in."

Unfortunately, many managers think the system works against them. And sometimes it does.

One government manager whose name can't be revealed because of ongoing litigation says he and his agency have been to the MSPB eight times to fight a whistleblowing case. One of the agency's high-ranking professionals has alleged that his superiors have neglected certain safety issues. The agency, however, believes that the employee is simply using the whistleblower label to protect himself from action based on his performance problems.

Over the years, the manager and the agency have made several efforts to negotiate with the employee in an effort to convince him to leave his job. They have brought in mediators, psychologists, even his wife and pastor--to no avail. Wanting this thorn gone from his workforce, the manager has even taken the case to the head of the agency, asking for removal. But no time was the right one to take action--once it was an election year, and another time the agency chief was undergoing confirmation.

In all the other cases he's handled in the past 25 years, the manager has been able to either rehabilitate poor performers or move them to other positions. But in this case, he has felt frustrated every step of the way. "We, as a government, I believe, don't give the benefit of the doubt at all to managers trying to do what's best for employees," he says. "As a result, there are lots of folks in government management positions who just don't manage."

Four Myths

Federal law requires agencies to develop written performance standards for each government job. By definition, a poor performer is someone who does not meet a job's critical elements. In The Federal Manager's Handbook: A Guide to Rehabilitating or Removing the Problem Employee (MPC Publications, 1994), G. Jerry Shaw and William L. Bransford, Washington attorneys specializing in federal employee law, set guidelines for handling poor performers.

Shaw and Bransford say serious misperceptions about dealing with poor performers often give managers an excuse not to act. According to them, four of the big myths are:

• It's too hard to fire an employee for poor performance or non-performance.
• Firing a poor performer requires more documentation than it's worth.
• Performance actions may only be taken in conjunction with the employee's annual appraisal.
• Employees who received high performance ratings in previous years cannot be discharged.

John Palguta, director of policy and evaluation at the MSPB, conducted focus groups of managers and lawyers a couple of years ago. Both groups were asked the same question: Do you think it's too hard to fire a federal employee? The lawyers' response was, "No, of course not." Supervisors and managers, on the other hand, said: "Of course. It's much too hard."

"So you have two different perceptions of the process we have in place to protect federal employees from partisan politics and improper removals," says Palguta. "The lawyers, who defend agency decisions or employees who are the object of removal, know what the legal standards are. They agree that the standards are fairly clear. If there's good cause, we can remove someone. It happens all the time."

He suspects managers' reluctance stems from reasons besides complexity. Confronting someone and telling them that they aren't doing a good job isn't an easy thing to do, he says. Plus, no one wants to work with a disgruntled employee. "What the manager really wants to do is walk into the employee's office and say, 'Look, you're outta here. Pack up your desk, and I want you gone by the end of the day.' They can't do that," says Palguta.

Taking Action

Leaders of federal employee unions say the problem isn't with the process, but with the people--specifically, the managers. Many supervisors, they say, simply lack the interpersonal skills needed to confront an employee with bad news about their work performance.

"In our view, all of the energy and attention focused on this issue of poor performers is misplaced," says Jeff Sumberg, director of field services at the American Federation of Government Employees. "There's absolutely no evidence that poor performers exist more in government than in other organizations. The real issue is one of managers: How good are they at managing people?"

In a government that is getting smaller and smaller, they need to get better and better at managing. In the past, managers frequently dealt with poor performers simply by ignoring them and assigning their work to others in the unit. Not only did that have an adverse effect on morale and productivity, but in a shrinking government, employees have so much of their own work to do that they cannot do someone else's too.

"In agencies where downsizing has occurred, I have seen a change in attitude by managers, because when their staffs get reduced, they can no longer carry poor performers," says Sally Marshall, a consultant with the National Academy of Public Administration and a former high-ranking federal personnel officer.

In addition, the Clinton administration and Congress have placed increased emphasis on dealing with performance problems in recent years. Earlier this year OPM produced a special CD-ROM guide, Addressing and Resolving Poor Performance, which provides managers with straightforward suggestions and easy checklists. Managers have embraced the publication. Nine months after its release, OPM says more than 30,000 copies of the guidebook are in circulation.

Studies show that managers are taking action more often today. The percentage of supervisors who referred problem employees to agency-provided counseling increased from 20 percent to 35 percent between 1992 and 1996, according to the MSPB. In 1992, 26 percent of supervisors said they gave their poor performers a less than satisfactory rating. By 1996, this had increased to 32 percent. Additionally, 30 percent of supervisors put their problem performers on a performance improvement plan in 1996, compared with only 24 percent in 1992.

And supervisors are going the distance and firing problem performers. An August 1997 newsletter from MSPB's Office of Policy and Evaluation said that in 1996 more than 10,000 employees were involuntarily separated from their federal jobs by their supervisors. About 3,000 of these resigned, but their official records indicate that their supervisors had initiated action against them for poor performance, misconduct or both. OPM data show that performance-based removals of employees (not including those who quit because they were going to be fired, or who were let go during a probationary period) have increased by 55 percent since 1993.

So firings do happen. But many federal employees continue to believe that their supervisors are not doing enough to deal with co-workers performing inadequately. In the 1996 MSPB survey, 51 percent of respondents said their agencies frequently failed to separate employees who cannot or will not improve their performance. In some agencies, such as the Education and State departments and the Environmental Protection Agency, at least 60 percent of employees thought their agencies failed to separate poor performers when necessary.

Change Is in the Air

Those managers who remain frustrated by the current system should take heart. MSPB is considering proposing several changes to the removal process. Ideas under consideration include:

• Repealing performance-related removal provisions in civil service law. The provisions have not made it easier to remove poor performers--the very reason they were passed in 1978.
• Streamlining the current multi-level, multi-agency process by which agencies can contest discharges.
• Changing reduction-in-force laws so that agencies can use RIF procedures to separate employees they already have cause to fire for poor performance.

Managers should remember that even under the current system, it's unlikely that their decisions to take action against poor performers will be overturned by a review board. "Most people who are fired don't appeal. Most people who appeal don't win. Most people who don't win before [MSPB] who appeal further to court don't win. We are dealing with the tiniest percentage of people who actually, successfully, reverse an agency decision," says Bruce Mayor, assistant director of MSPB's Office of Policy and Evaluation and an attorney specializing in adverse actions. MSPB statistics show that only about 20 percent of all removals and demotions are appealed, and only about 17 percent of all decisions result in reduced penalties or reversed actions.

Most employees want to be good performers. Many who are confronted will simply resign. If an employee isn't performing well even with guidance, he or she probably isn't in the right job, and should be encouraged to move on.

Monica Fuertes is a freelance writer in Arlington, Va., who specializes in human resources issues.