By William Wiley, January 11, 2016

It’s a common question. One that most of us have a title-like elevator-answer for:

I’m an attorney.

I’m a human resources specialist.

Maybe even: I do labor relations for the XYZ Agency.

Yes, but what do you actually do when you’re performing in these roles? If you are an employment law practitioner, did you think to say:

I help supervisors fire bad government employees.

For some of you readers, that should be Line Number One in your mental position description. But we don’t often articulate our roles that way. It sounds mean. It acknowledges that the government has some employees who do not do their jobs at a minimum level of performance or who violate workplace rules. However, in these times of clarity and transparency, perhaps we should acknowledge that this is a major responsibility that many of us have.

Although it’s our job, I don’t think any of us relish the idea of doing it. We wish that there were no bad civil servants who could not be rehabilitated. We would prefer if the darned process wasn’t so confrontational. We hope that supervisors figure out how to otherwise deal with problem employees, by motivating them to work better or encouraging them to leave government voluntarily through some bi-lateral agreement. But when push comes to shove, when the job is just not getting done and nothing else works, a supervisor is left with two options: either approve that a non-productive employee continues on the government payroll being paid tax payer dollars to which he is not entitled, or fire him. When the option is firing, we advisors are obligated to step up to the plate, put on our big-girl/big-boy pants, and do what needs to be done.

If we acknowledge that this is our job, we also acknowledge that we are not the action officials. It is the front-line supervisor at most every federal agency who is delegated the responsibility to make these decisions. We are but advisors, counselors, technicians of the law. When a supervisor comes to us with a bad employee, it is our job to say, “What do you want to do with this guy?” Instead, what we often hear in our FELTG supervisory training classes is that “HR won’t let me do that” or “That’ll never get past legal.” Well, those of us with JD and HRS after our names were not hired to make these decisions. It’s the line managers who decide the outcome and we technicians who help them get there. At least, that’s the way it’s supposed to work. Yet in too many agencies we advisors frustrate managers by telling them they can’t do something that they want to do that in their opinion, would allow them to manage the government better.

Play this mind game with me for a minute. What if you were a private company – law firm, HR consult, whatever – and you held yourself out as a service provider for dealing with problem employees. If a manager came to you for advice on how to fire someone, and your response was that they should not fire the person, then you wouldn’t be in business very long. Of course, if what they wanted to do was illegal, you could tell the potential client that it wasn’t legal, and that you wouldn’t be part of something that was illegal. That’s just fine. But if you gave your advice as to the pros and cons, and the client wanted to go through with the firing anyway, I would think that you would help them do that. It is their responsibility to make those decisions and they bear the blame or credit if their decision is a good one.

Here’s an example of what I see all too often. In a classroom of attorneys I was working with a few months ago, I gave some standard advice for how to handle an employee in a particular situation. One of the participants disagreed and said that if I did that, the employee might be able to claim that the agency had interfered with her rights in the future should criminal charges be brought. There was no question as to whether the approach I was suggesting be taken was best for the supervisor. It was. However, the agency attorney who disagreed felt it might not be best for the employee. And without any case law to back up that speculation: “It might happen.” Well, it MIGHT HAPPEN, and I MIGHT NOT CARE because the employee is not my client. The agency supervisor is.

We should think of ourselves as service providers. The services we provide are intended to help agency supervisors, managers, and executives run the government. Next time a supervisor asks you for assistance, say to yourself, “How can I help this supervisor do what she wants to do?”  If instead you find yourself saying, “No, you can’t do that,” then please go re-read your mental PD.

Wiley@FELTG.com

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