By Ann Boehm, June 12, 2019

I first attended FELTG’s MSPB Law Week, I excitedly returned to my agency hoping to spread the good word about how to handle problem employees. Instead, I was repeatedly told, “It’s not that easy.” I was reminded of this recently when a class attendee said, “We love your training, but when we talk to counsel and try to take action on a problem employee, they tell us, ‘It’s not that easy.’”

Folks, I get it. I was a supervisor, I oversaw discipline for an agency, and I litigated employment law cases for many years. I will agree that handling problem employees can be hard because, well, you are dealing with people. Firing someone, even someone who deserves it, is not easy.  But why is it important for you to dig in anyway and address the situation?

If you start handling a problem employee, it can wake that person up. He or she may turn things around.  Also, other employees will take notice and see they have to behave and do their jobs well, too. It’s like confronting a bully. You owe it to yourself and to your good employees.

And I feel your pain – litigating is hard work. Discovery can be exhausting, opposing counsel can be difficult, and there are crazy judges who make bad decisions. But winning lawsuits is fun, and it is vastly easier to win those lawsuits when managers handle problem employees the way Congress intended.

The processes for handling misconduct and performance really are easy. It’s only hard when counsel, HR specialists and supervisors overcomplicate things. And paralyzing fear of litigation is also a problem that makes proper management difficult. Don’t be afraid of litigation; be afraid of losing a lawsuit and let that motivate you to do the right thing for the right reason. Always remember, if you have a bona fide reason for what you do, you are very likely to win any litigation.

So, keep things simple.

In misconduct cases:

  • Employ progressive discipline: Reprimand, Suspension, Removal.
  • Don’t waste time with letters of caution/instruction/warning/admonish-ment.
  • Remember the burden of proof in misconduct cases is only preponderant evidence, or more likely than not. It’s not “beyond a reasonable doubt.”
  • Use the Douglas factors for penalty – they are helpful and they provide justification for how you address a particular employee’s misconduct.
  • Remember that due process requires only that the employee be given notice of the charged misconduct, an opportunity to reply orally and/or in writing, and a decision by an impartial decision maker. Don’t complicate it! Due process does not mean you have to treat all employees the same.

In performance cases:

  • Review the critical elements for your employees and make sure they are specific, measurable, and attainable.
  • Once an employee fails on any one critical element (after he or she has been on a performance plan for 60 days), start the employee on a Demonstration Period (formerly known as a PIP or Performance Improvement Plan).
  • Unless a collective bargaining agreement or agency policy says otherwise, use a 30-day Demonstration Period – not 60-, 90-, or 120-day!
  • Don’t waste time drafting a document that recites all instances of past performance issues – it’s not necessary and it will just annoy the problem employee.
  • Understand that the 30-day Demonstration Period is 30 days of your life you will never get back. You will be busy meeting with the employee regularly and consulting with your advisor. But at the end, if the employee fails, he or she can be removed. Poof!
  • Remember that the burden of proof in performance cases is very low – substantial evidence, which is about 40%. You can win these cases!

I hope my personnel pep talk has given you the confidence and resolve to deal with problem employees. Try it. You will see. It is that easy. Boehm@FELTG.com

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