By Ann Boehm, September 16, 2020
I left the government in 2018, I spent a short time working in sales. In nearly every training session or staff meeting I attended, we were told to make sure the potential client knows your goal is to save them time and money. It makes sense. Those are things that people care about. (And now that I have told you that, you will now start to hear that “time and money” mantra from realtors, car salespeople, bathtub refinishers, gutter replacers, and anyone else trying to sell you something. Really. Start paying attention.)
I know what you’re thinking: We work for the government – we have all the time and money in the world. In some ways, that is true. But if you have a problem employee, do you really want to waste any more time and money than you have to?
Let’s start with time. So many agencies just love giving out letters of caution/letters of instruction/letters of warning to employees who engage in misconduct. Here at FELTG, we call those “lesser letters.” True, they are legal. But they are a complete waste of time, legally speaking. They don’t count as prior discipline. They are nothing more than a reminder to an employee that they have to abide by the agency’s rules.
To count as prior discipline for progressive discipline purposes – the ultimate goal in employee discipline – the employee’s action has to be clearly erroneous, the employee must be informed in writing, the action must be a matter of record (i.e., in the eOPF), and the action must be grievable and threaten future discipline. Bolling v. Air Force, 9 MSPR 335 (1981). Letters of reprimand satisfy these criteria. Lesser letters do not.
For some reason, supervisors, counsel, and HR professionals feel great comfort when they give an employee a “letter” — one of the lesser letters. When I supervised Discipline Management, we kept track of how many lesser letters we gave out each month. The number hovered around 35 per month. That’s a lot of wasted time.
Once I attended FELTG training and learned that only letters of reprimand count as prior discipline, we slowly stopped the constant issuance of lesser letters. I had to retrain a lot of supervisors, managers, and employee relations experts on why we should issue letters of reprimand when we wanted to issue a “letter.” We ended up dropping the number of lesser letters to zero (or very close to it), which is the right thing to do, since the lesser letters are undefined and have no legal value.
- So that covers saving time. What about saving money? Lesser letters provide the agency with no disciplinary value, but they still provide an avenue for an employee to grieve or file an EEO complaint or file a whistleblower retaliation claim. Last time I checked, litigating those matters costs money. And heck, they take time too.
In Massie v. Department of Transportation, 2010 MSPB 106 (2010), the Agency issued the employee a Written Admonishment (yep, a lesser letter that was not placed in the eOPF). The employee filed a whistleblower retaliation complaint with the Office of Special Counsel (that took agency time and money). He also filed a grievance under the collective bargaining agreement, which the agency settled by expunging the Written Admonishment (that took agency time and money). The employee then filed an Individual Right of Action appeal before the MSPB. The MSPB administrative judge scheduled a hearing, cancelled the hearing, scheduled the hearing, and then cancelled the hearing based upon the agency’s motion to dismiss the appeal for lack of jurisdiction (lots of agency time and money!).
The administrative judge dismissed the case and the employee appealed to the MSPB. And he won his appeal. The MSPB said this: “[R]egardless of whether the agency placed the Written Admonishment in the appellant’s Official Personnel Folder or not, he has nonfrivolously alleged that the agency subjected him to a covered personnel action when it issued him the Written Admonishment.” Id. (emphasis added). The MSPB then remanded to an administrative judge for a hearing. Good golly. All that for a letter that really did nothing for the agency.
So what’s an agency to do? If an agency does not think an act of misconduct merits a letter of reprimand, send a corrective email. While an email has zero disciplinary value (um, just like a lesser letter), it’s also unlikely to generate a grievance or EEO complaint or whistleblower case. It can be a basis for a subsequent failure to follow instruction charge, or show that the employee had notice of a rule.
If you want to write a letter, make it a letter of reprimand. Help yourselves out. Save time and money! Eliminate the lesser letters! You’ll be glad you did. Boehm@FELTG.gov