By Deborah Hopkins, August 14, 2019
Last month, I published the first article in a three-part series We Don’t Need Civil Service Reform, where I discussed how holding employees accountable is not as difficult as you think. A couple readers took issue with that premise, and said it’s NOT that easy. Well, at FELTG our instructors’ experience, some as former federal managers and some as legal consultants to dozens of agencies over the years, leads us to this conclusion: Although some agencies have built managerial problems for themselves, when it comes to misconduct and performance removals, the procedures are indeed simple. Actions can be taken without great pains. We don’t make this stuff up.
If you haven’t read the article, I recommend you do before you move on to today’s topic.
Have you noticed when you read the news or watch politicians on TV, the theme about federal employees, on a continuous loop, is that it takes forever to take any action against them? In reality, yes, agencies are taking far too long to take action against employees who have performance or conduct issues. But, it shouldn’t take a long time – and even better, it doesn’t have to.
Holding employees accountable is not as time-consuming as you think it is.
There are legal timelines for taking misconduct and performance actions and unless your agency policy or collective bargaining agreement says you have to do otherwise, I don’t know why you wouldn’t comply with the legal minimums. In addition, the documents needed to discipline an employee, or to put the employee on a performance demonstration period (or DP, the preliminary action formerly known as the PIP) shouldn’t take weeks or months to draft.
In DISCIPLINE cases, here’s the timeline:
Reprimand: Issue this immediately – as in, the same day the employee violates a workplace rule, or the day you find out the rule was violated. The longer you wait, the more of a disservice you do to yourself (it doesn’t count as discipline until the reprimand is given to the employee) and to the employee (she doesn’t have a chance to “learn” from the reprimand until she has received it).
It also doesn’t make logical sense to wait months to issue a reprimand. Such a delay undermines the assertion that “What you did was bad, and we won’t put up with it.” Legally, you can still issue a reprimand months after the misconduct – but why would you wait?
Short suspension: The proposal for the short suspension (anything a pay period or less) should also be handed to the employee as soon as practicable after the employee violates the workplace rule – generally within a week.
The employee then has a minimum of 24 hours to prepare a response to the deciding official (some agency policies or CBAs allow 7 or 10 days for the response), and the deciding official’s decision after considering the proposal and the employee’s response, can go into effect the next day.
That’s right. If an employee violates a rule on a Monday, the proposal can be given to the employee on Wednesday or Thursday, and the suspension could be served starting as soon as the following Monday.
Removals, demotions, and long suspensions: We recommend you never demote an employee or suspend for more than a pay period – come to MSPB Law Week if you want to know why – so I’ll focus this on removal actions.
The proposed removal should be issued to the employee immediately after the conclusion of the misconduct investigation, and the employee should be placed on notice leave so as not to disrupt the workplace. After all, the employee has done something so bad he deserves to be fired, so the longer you wait, the weaker it makes your argument about the nature and seriousness of the offense. The employee then has a minimum of 7 days to respond to the proposal (again, check policy or CBA). At any point after the response, and within 19 calendar days (per Executive Order 13839) the deciding official must make a decision, which can become effective as soon as day 31 (if the proposal is day 1).
Yes, an employee who violates workplace rules can be out of the workplace and off the payroll in a little over a month after the misconduct occurs.
In PERFORMANCE cases, the timeline looks like this:
As soon as the supervisor can articulate why the employee’s performance is unacceptable on a critical element in the performance plan, the supervisor should initiate a 30-calendar-day demonstration period – what we used to call a PIP – to allow the employee to show he can perform his job at an acceptable level. If the employee is not successful, his removal or demotion should be proposed immediately after the end of the demonstration period. In fact many agencies, such as USDA and HHS, have policies requiring a decision about the employee’s future to be made within 7 days of the end of the demonstration period.
After the proposal is issued, the employee then has a minimum 7-day response time, the same as in proposed disciplinary removals. But here’s where things become different from disciplinary cases: the deciding official is legally required to issue a decision within 30 days of the expiration of the notice period. Functionally, that falls between days 31 and 60, if the proposal is issued day 1.
It’s true, my friends. It only takes a month to remove a poor performer and MSPB has never NEVER NEVER found a 30-day demonstration period to be too short. The only time you have to make that period longer is if your CBA requires it, or perhaps if the person comes down with some terrible illness and is out of the workplace for three weeks out of the demonstration period.
Whether it’s a misconduct or a performance problem, you can have the employee off the rolls within just a few short weeks. It shouldn’t take months or years. The system as it exists is built for efficiency. You just have to use it the way it was intended.
Join us next time for Part III, where we discuss how holding employees accountable does not take as much proof as you think.
Take care out there. Hopkins@FELTG.com