By William Wiley, April 3, 2018
Experienced practitioners know that it’s almost always better to avoid litigating a termination case than going to a hearing and defending a removal action. That’s because a) litigation is time- consuming and expensive, and b) even if you have a good case, there’s always a chance you will lose. Last year, agencies lost about one-in-four to one-in-five removals that were appealed to MSPB. Discovery before the Board can involve thousands of pages of documents and several tedious depositions of senior managers. Why incur that risk and expense if you can get rid of the guy otherwise?
The term “discipline alternatives” was derived a few years ago to describe this class of options for supervisors who have a problem employee. The most common one of these is a “Last Rites” meeting in which we try to talk the employee into voluntarily quitting in exchange for some benefit. “Hey, Bill, if you’ll quit, I’ll let you work at home without any real duties other than finding yourself another job. Let’s say two months, and your dress code is your pajamas.” Write it up, get the employee to sign a contract promising to be gone, and you’ve done yourself and the country a great favor.
Another option is the similarly-named “Last Chance” agreement. In this case, you agree not to implement a decision to fire someone if he’ll promise to be good for the next couple of years. If he survives the agreement period, the removal goes away. If he screws up before the period is over, it’s an immediate removal with no appeal rights and no Douglas factors. If either of these “Lasts” is new to you, sign up for our training. Agencies that know what they’re doing have been using these for decades to avoid litigation and still remove bad employees from the federal workplace.
These two options are well-established in the case law. Easy to research, easy to see how effective they can be. However, not long ago, we ran across an option being used at HHS that we think can be very useful, in the right situation, and that doesn’t lend itself to case law research. As everybody knows, the sub-agencies within HHS – FDA, NIH, and CDC, among others – do a lot of research. That means that there are a lot of employees who work in labs and on projects doing specialized technical work for extended periods of time. When it develops that an employee is no longer meeting performance standards for a critical element, HHS management uses PIPs (now known as ODAPs for “Opportunity to Demonstrate Acceptable Performance” to emphasize that it is not an “improvement” period”), last rites and last chance agreements, just like everybody else.
However, they’ve also come up with another option that in the right situation is well worth consideration. It’s called a “Terminal Detail.” Employees in a research environment sometimes just don’t keep up with the science in a particular lab and are therefore not performing acceptably. Otherwise, they have decent work habits and might fit in somewhere else. As an alternative to implementing formal procedures, the supervisor explains the situation to the employee and invites the employee to find another workplace in the organization that could use some help and is willing to try out the employee. If the employee finds an alternative position, the current supervisor offers to continue to pay the employee’s salary from his organizational funding for six months or so while the individual works in the other component. The receiving organization gets free labor for the period and also gets to evaluate whether it has a permanent place for the employee long-term.
If the employee works out in the new location, and is picked up as a permanent employee, the personnel action is a reassignment, and everybody wins. However, the deal that’s struck requires the employee to understand that if he does not have other employment by the end of the Terminal Detail, he must leave voluntarily. He cannot return to his original job, and either quits or retires, whichever option is available to him. The implementing agreement waives the individual’s rights to file an appeal, grievance, or complaint regarding anything that leads up to the detail, so there’s no adjudication related to the action.
The price to the supervisor is six months (or so) salary, so this is not a freebie approach. However, many supervisors who have been through a removal action and appeal to MSPB would say that it is a reasonable price to pay to have the employee out of the workplace immediately, with no chance of being reversed on appeal. As for the employee, he is faced with either an involuntary removal effective within 30 days or so, or the alternative of trying to prove himself to another supervisor doing different work. The choice is not right for everyone, but when it’s a good fit, it can be life-changing for the better.
Keep your options open. Stay flexible and creative. Yes, our business is firing people. However, if you can use other options to get you to the same place without all the lawyer-stuff, you almost always come out ahead in the end. Wiley@FELTG.com