By Barbara Haga, December 15, 2020

This expression is bizarre – who would lose track of their baby in the bath? It is interesting, though.  I did a bit of research.  The phrase is German in origin and by the 1600s, it was commonly used and appeared in writings of astronomer Johannes Kepler. One site explained that the German version would actually be “you must empty-out the bathing-tub, but not the baby along with it.” The message is simple: One shouldn’t discard something valuable along with something undesirable. That’s my request to the new administration.

Dear President-Elect Biden and Transition Team

At FELTG, we train HR practitioners, attorneys, and managers on how to hold employees accountable. Whether the issue is performance, conduct, or attendance, we teach those responsible for effective human resource management how to navigate a complex system of procedures for taking action when Federal employees don’t live up to expected standards.

I realize that the prospects of anything in EO 13839, Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles, surviving the first few days of your new administration are slim, but I hope that at least there will be consideration of maintaining certain provisions that are important to supervisors faced with the task of managing Federal employees.  The fact that EO 13839 was issued with the two orders that set limitations on union matters may mean that worthy provisions relating to conduct and performance actions will be cancelled in the same fell swoop that will undo EO 13836 and 13837.  However, I hope you will agree that accountability in Federal service is a worthy goal – whether there is a Democrat or a Republican in the White House.

Unacceptable Performance

I want to specifically focus on dealing with unacceptable performance because it has been recognized for many years that failure to deal with poor performance is an issue in Federal agencies.  The Civil Service Reform Act (CSRA) of 1978, which passed during the Carter Administration (and during your tenure in the Senate), included the nine basic principles that set the guidelines for recruiting and retaining a high-quality workforce.

One of the nine principles addressed the need for dealing with poor performance. 5 USC 2301(b)(6)  states: “Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.”

The law directs managers to hold employees to standards of acceptable performance and to take action when they do not improve and set the procedures by which actions could be effected.

While those procedures gave managers what were supposed to be more effective tools to maintain accountability for acceptable performance, the process hasn’t been used as most expected. In 1995, the MSPB reported that of the 8,785 initial appeals decided by the Board’s Judges only 146, or 2 percent, were unacceptable performance actions. The relative percentage has never varied significantly. The MSPB’s 2019 annual report stated that there were 4,893 appeals and 113 (again 2 percent) were performance actions.

The Federal Employee Viewpoint Survey has shown that federal employees don’t see that employees in their organizations are held accountable to performance standards. Since the inception of the survey, there has been a question designed to elicit this information.

Question 23 on the survey is “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve.” In response to the first survey in 2002, only 25 percent of Federal employees answered that they strongly agreed or agreed that their units dealt with poor performance appropriately. That was the lowest positive score on the entire survey. Over the years, the numbers in the survey have increased somewhat.

The 2019 survey results showed that 33.7 percent answered that they agreed or strongly agreed with the statement.  It’s no longer the lowest positive score on the survey. It’s number two from the bottom. That’s not much improvement.

In years since, this issue has been recognized but no action taken to try to correct the situation.  The Bush Management Agenda for FY 02 addressed “real consequences for failure,” but there were no changes implemented at the time. The White House deficit reduction plan submitted in September 2011 included reform of personnel system, highlighting the need for addressing poor performance. The GEAR (Goals-Engagement-Accountability-Results) Report issued in 2011 under the auspices of the National Council on Federal Labor-Management Relations noted that there needed to be accountability at all levels, yet OPM did not make revisions. There were multiple calls for action, some from the last time you were part of the Administration, but no action ensued.

What Did EO 13839 Do?

The Order states: “Failure to address unacceptable performance and misconduct undermines morale, burdens good performers with subpar colleagues, and inhibits the ability of executive agencies … to accomplish their missions. This order advances the ability of supervisors in agencies to promote civil servant accountability consistent with merit system principles while simultaneously recognizing employees’ procedural rights and protections.” The performance-related provisions of EO 13839 directed agencies to take certain steps to make unacceptable performance actions easier, including:

  • Minimize burden on supervisors (Sec. 2.(a)). In some cases, HR advisors had added extra requirements beyond what the law and regulation required to performance actions, such as documenting pre-demonstration period performance.
  • Eliminate pre-demonstration period requirements (Sec. 4.(b)(ii)). In some agencies, there were extra steps built in. Supervisors had to give formal notice of an “assistance period” before initiating a performance action. In one agency, that totaled 150 days – a 30-day assistance period before a 120-day demonstration period. For a manager at that agency to take action was an investment of 150 days, even though many of those employees performed transactional work where the supervisor would have ample time to determine if the employee could perform acceptably or not in much less time.
  • Eliminate any requirement to use 432 procedures (Sec. 4.(b)(ii)) and use 752 (conduct) when appropriate (Sec. 2.(h)). An illustration comes from the VA. A pharmacist was making mistakes in filling prescriptions. In some cases, it was the wrong medicine and in others it was the wrong dosage. Any mistakes not caught could potentially kill one of our veterans. Yet, for some reason, the agency put that employee on a demonstration period. This action should have been handled under disciplinary procedures. The demonstration period was dangerous.
  • Limit demonstration periods to 30 days in most cases (Sec.2(a)/Sec.4.(c)). This was the most controversial performance-related provision of the Order. For most jobs, 30 days is enough to judge whether there is improvement. Demonstration periods are not limited to 30 days by the Order when the nature of the work demands something different, which is exactly what the regulations provide.  5 CFR 432.104 states “… the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee’s position.”

President-Elect Biden, I hope I’ve made a case to keep these tools in the hands of the managers who will be charged with carrying out the programs that you want to establish during your administration. Give them the things they need to manage effectively. Please don’t throw the baby out with the bath water! [email protected]

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