The Good News: Good Leadership Does Make a Difference

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By Ann Boehm, November 13, 2019

In case you hadn’t heard, the Washington Nationals won the World Series!! Sorry Astros fans, but DC really needed this.  Now that I’ve almost recovered from the daily fog of staying up too late to watch seven baseball games, I’ve had some time to reflect on the win.  (Um, Ann, this is a federal employment law newsletter, not a sports journal.  What’s going on here?)

And so, I’ve concluded, good leadership is the key to success. (See, I’m getting there. I have lessons for you all.)

Before the Nationals started Game 1 of the World Series, I read an article about Nationals manager Dave Martinez and his exceptional leadership. “Things change, but Dave Martinez remains the even-keeled beating heart of the Nats,” by Chelsea James, Washington Post (October 24, 2019). One particular part of the article really hit home to me, and that’s the following:

[M]ultiple team executives and players offer unsolicited praise of his handling of people:  He doesn’t berate players. He doesn’t play mind games. He lets veterans lead how they see fit.  He stays positive. He smiles. He cares.

Well aren’t those some words to live by!

Federal managers, please read that paragraph again and again. Ask yourself if your employees could say the same about you. And if the answer is no, then do what Dave Martinez does.

We know that you have to deal with problem federal employees, and we do our best to help you handle performance and misconduct matters.  Sometimes you get frustrated by resistance from the human resources professionals and counsel who are risk averse, and we feel your pain. But no matter what, if you can try to run your organization a bit more like Dave Martinez runs the Washington Nationals, you may find that your employees take better care of you.

I’ve had my share of good and bad bosses throughout my career.  The good ones were a lot like Dave Martinez. The bad ones – polar opposites.  Even good employees are frustrated by bad managers.

Take a moment to think about how you run your organization, and see if you are doing what Dave does.

So let’s review:  Don’t berate.  Don’t play mind games.  Let veterans lead how they see fit. Stay positive. Smile. Care.  Let me know if it works! Boehm@FELTG.com

The Good News: Finally, an End to the Table of Penalties!?!

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By Ann Boehm, October 16, 2019

Employee relations specialists, supervisors, and attorneys at agencies all around the country have one thing in common – they love, love, love their agency’s Table of Penalties.  And I just don’t get it.

When I became Chief of Discipline Management at my former agency, I too thought the TOP should be the focus of all discipline.

What I learned instantly, though, was that the TOP is pretty much useless because of the way federal agencies have to charge employee misconduct. In order to comply with years of Merit Systems Protection Board and Federal Circuit law, agencies have to prove every word of a charge against an employee. The result is that the TOP often doesn’t match what the agency charges.

In countless disciplinary letters I reviewed, the following phrase appeared: “Although there is no offense in the TOP directly relevant to the charge in this case, the most closely related is [Enter Offense from TOP Here].” The reference to the TOP resulted in wasted words and nothing gained. So, a nothingburger, basically.

I did a Google search for Table of Penalties and, using the first one that appeared (the agency name is withheld to protect the innocent), I noticed a couple of things of interest. First, 53 offenses are listed.  In 18 of them (34%), the recommended penalty for a first offense is “Written Reprimand to Removal.” Well, isn’t that helpful – NOT!

That’s the penalty range for anything and everything.  So what in the world is good about the TOP in that respect? Second, when is the last time you saw someone charged with “Negligent or intentional injury to person or property of other employees”? Never. Because the MSPB would not sustain that charge and the agency would lose. That’s also one of the ever-so-helpful “written reprimand to removal” offenses. There are almost no offenses in any TOP that would actually be used as the “charge” in an appealable adverse action.

The Good News for this month is that the Office of Personnel Management (OPM) agrees with me: The TOP is not helpful and may even be harmful.

In the proposed revisions to 5 CFR part 752 issued on September 17, 2019, OPM notes that the “creation and use of a [TOP] is not required by statute, case law or OPM regulation, and OPM does not provide written guidance on this topic.”  Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions, 84 Fed. Reg. 48794 (Sept. 17, 2019). Let me boil that down for you. OPM notes that because agencies are to discipline based upon the “efficiency of the service,” agencies “have the ability to address misconduct appropriately without a [TOP], and with sufficient flexibility to determine the appropriate penalty for each instance of misconduct.”  84 Fed. Reg. at 48798.  OPM also states that TOPs “may create drawbacks to the viability of a particular action and to effective management.”  84 Fed. Reg. at 48798. In that regard, OPM explains that “by creating a range of penalties for an offense,” a TOP may “limit the scope of management’s discretion to tailor the penalty to the facts and circumstances of a particular case by excluding certain penalties along the continuum.”  Id.

So what’s an agency to do? Use the Douglas factors (Douglas v. VA, 5 M.S.P.R. 280 (1981)), and not the TOP.

The proposed regulations actually direct agencies to “propose and impose a penalty that is within the bounds of tolerable reasonableness” as established by the MSPB in Douglas. Notably, this will now apply to any removal, demotion, or suspension, including suspensions for 1-14 days.  84 Fed. Reg. at 48798.

As OPM directs, “the penalty for an instance of misconduct should be tailored to the facts and the circumstances, in lieu of the type of formulaic and rigid penalty determination that frequently results from agency publication of [TOPs].” Id.

My friends, say goodbye to the beloved, if not exactly precise, TOP and start using all 12 of the Douglas factors. Once you break free of the TOP, I think you will see that you did not need it at all.  OPM wants you to do it. Take their direction and believe! This is Good News!! Boehm@FELTG.com

The Good News: At Last, Successful Last Rites Agreements

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By Ann Boehm, September 18, 2019

In many training sessions, we suggest that agencies consider a “Last Rites” Agreement to handle problem employees. In my experience, despite our encouragement, many agencies still don’t use this effective tool. Finally, however, I heard from a recent class participant who had  success with Last Rites in 8 out of 9 employment situations. That’s Good News, and I want to share it.

For those who don’t know what a Last Rites Agreement is, our Grand Poobah Emeritus Bill Wiley described it in an April 2017 FELTG newsletter article:

A Last Rites agreement is negotiated at the point that the supervisor has reached the conclusion the employee needs to no longer be employed in his position. Many times, the supervisor has already collected enough evidence to propose a removal based on either misconduct or unacceptable performance. Here’s how it works in most cases:

1. The supervisor or someone on her behalf (attorney, human resources specialist, ombudsman … whomever) approaches the employee with the offer. The employee is told that he has a removal facing him soon, and is offered the chance to resign voluntarily rather than be fired. Some employees see a resignation as an advantage to being fired because the employee’s Official Personnel File will record a voluntary quit rather than a forced removal. (See the sample in the back of your copy of UnCivil Servant).

2. Supervisors see voluntary quits as an advantage to firing the employee because the quit is effective immediately at getting the employee out of the workplace, and the employee has waived appeal/grievance/complaint rights in a well-worded Last Rites agreement.

3. The employee has the choice of being fired and exercising appeal rights, or quitting and foregoing appeal rights in exchange for a “clean record.” [Boehm note: By acting before any final action occurs, the agency also avoids conflict with Executive Order 13839’s edict that there be no more Clean Record settlements that remove items from official personnel records. This is pre-official record.] Sometimes agencies will incorporate a little time off or attorney fees as an extra incentive to resign. MSPB has a perfect record at upholding agreements like these as long as the agency does not mislead the employee (emphasis added).

Sounds so logical and simple, but agencies are not doing these. I suspect some folks fear it is “coercion” or a “constructive discharge.” But that’s not how the MSPB and Federal Circuit see it. These are perfectly legal.

So along comes this month’s hero to tell us about the situations where he had success with Last Rites Agreements.  To his credit, he wanted to share this with our newsletter readers to “potentially help people in the future.”  We here at FELTG are very appreciative.

Here are some of the success examples:

  1. Female employee bullied and demeaned other female employees for approximately 10 years. Despite investigations substantiating misconduct, her supervisors never took any action. The last straw was when she harassed a colleague who was having trouble conceiving a child. The supervisor suddenly wanted to fire her. Without any prior discipline, the Last Rites Agreement was a safe way out. The agency called in the union representative, since the employee was in the bargaining unit. They offered her 60 days of pay, and even the union thought this was fair.  She accepted the agreement!
  2. An employee had a long history of attendance issues, including AWOL and habitual tardiness. Supervisors failed to act, but finally did give him a letter of reprimand. He went AWOL after that. The agency offered him a Last Rites Agreement. The union representative was briefed prior to delivery. He accepted the agreement!
  3. One perpetually tardy/AWOL employee had received a reprimand and suspension and removal was up next. The employee had lost his son to illness six months earlier. As a humanitarian move, the agency offered a Last Rites agreement instead of removal. He accepted the agreement!
  4. Another employee was facing prison time for a DUI with bodily harm to another person. He kept postponing his court dates and lingered on as an employee, and the supervisors wanted the conviction in place before proposing removal. He knew he was facing prison time and likely removal, so he was actually relieved to get paid for 30 days and have the ability to resign. He accepted the agreement!
  5. Two employees were harassing and bullying a female subordinate for several months. She filed a grievance and the agency investigated the matter. The agency was ready to remove both, but the agency elected to try a Last Rites Agreement. They both accepted the agreement!

I didn’t even include all of the examples from this one agency. Last Rites Agreements work. At least give it a try.  And if you try and succeed, please let me know.  You too can make The Good News.

Boehm@FELTG.com.

The Good News: Mulvaney is Wrong!

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By Ann Boehm, August 14, 2019

Acting Chief of Staff to the President and Director of the Office of Management and Budget Mick Mulvaney recently spoke at a Republican Party event in South Carolina and boasted about the Administration’s clever way of getting Federal employees to quit.

He explained that by moving Department of Agriculture employees “outside this liberal haven of Washington, DC” the employees quit. This is a great thing, according to Mulvaney, because “[i]t’s really hard to drain the swamp.” He said, “it is nearly impossible to fire a federal worker.” And, he clearly believes getting Federal employees to quit benefits the country. To quote the Church Lady, “Well, isn’t that special?”

Folks, Mr. Mulvaney is on swampy, not solid, ground.  Here are three reasons why.

DC Federal employees are not the part of the swamp that needs draining (um, that would be Congress). I come from a distinguished line of DC swamp dwellers.  My father, sister, and I all retired from the swamp.  My husband is a current swamp dweller.  I promise you the American taxpayer has gotten plenty of value from their tax dollars with us.

Also, I’ve worked with many, many amazing DC swamp dwellers. Interestingly, they are not all liberal. Fox News was often the channel of choice in the office gym.

But that doesn’t even matter. Most of the Federal employees with whom I have worked in the DC area are hardworking, committed, talented employees.  There’s no reason to want them to quit. They should be praised.

Federal employees don’t work only in DC. I have been a FELTG instructor since November of 2018. During that time, I have spoken to outstanding managers, supervisors, attorneys, human resources specialists, and employees in 17 different states, including Alaska and Hawaii.  These folks protect our national parks, our national defense, our water rights, Federal lands, public health – so many things that most Americans either take for granted or don’t even realize. Apparently Mr. Mulvaney is unaware.

You can fire Federal employees. There are some bad Federal employees, and they are like bad apples. They can spoil the whole bunch. But here’s the truth: They can be fired for performance or misconduct. There’s a process but, as we teach and write about repeatedly, you can handle problem employees. In fact, you must handle problem employees.

Federal employees, hold your head high.  Do your public service.  Prove Mr. Mulvaney wrong and get rid of the bad employees — and cheer on the good ones, even in swampy DC!  And keep up the good work! Boehm@FELTG.com

The Good News: It’s Perfectly Legal to Talk to Your Employees — and it Can Net Results!

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By Ann Boehm, July 17, 2019

Our friends at the Merit Systems Protection Board (MSPB) Office of Policy and Evaluation recently released a research brief called Remedying Unacceptable Performance in the Federal Civil Service. It’s nice to know the MSPB is functioning, even without any Board members (yep, we are still waiting on Senate confirmation of the President’s three Board nominees).

The brief’s top recommendation for handling poor performance is to “hire the right people.”  Gee, thanks for that advice. Just in case your crystal ball isn’t always working properly and you aren’t always able to hire the right people, here’s the big takeaway from the rest of the research brief (and based on my own years of experience): Talking to employees works.

In case you feel like you’ve tried everything with problem employees, don’t despair. You’re not alone. Apparently, three fourths of the supervisors surveyed reported taking 10 (!) different approaches to deal with poor-performing employees. “Houston, we have a problem.”  (OK, I know that’s a movie quote and not the historically accurate statement. You get my point.) Supervisors need to figure out a more efficient way to handle poor performers.

The brief states “supervisory support has a relationship to the quality of an employee’s performance, with the most supportive supervisors tending to have the best performers.”  Easy enough.

Here’s what you have to do to be supportive – talk to your employees (are you catching on to my theme?)  And it’s perfectly legal to do so.  Believe it or not, at a training session I recently conducted, supervisors had been instructed by human resources professionals not to talk to their employees about performance. They were told it could lead to litigation. Um, so can getting a scalding cup of coffee at the McDonald’s drive through, potentially. That’s just lame and incorrect advice!

If you aren’t sold yet, read this line from a footnote in the MSPB research brief. “Employees who agreed that they feel comfortable talking to their supervisors about doing the things that matter to them at work and that their supervisor supports their need to balance work and family were more likely than others to report:  (1) engaging in strong performance behaviors; and (2) that their performance had been rated at the highest level in their appraisal system.”

That’s so powerful, you may want to reread it!

Here are some other things that the brief found effective: monitoring the employee’s work by providing feedback and coaching; communicating; providing guidance on expectations; and discussing possible negative consequences. On this last point – discussing possible negative consequences – I can already hear the lawyers advising, “Don’t do that.  They may sue you.”  Oh, please. It’s not illegal to tell an employee he or she has to do the job correctly or he/she could lose it. In fact, you owe it to the employee. According to the folks at the MSPB, it works.

My friends, I know you’re busy people.  I know you don’t get paid extra for being supervisors.  But help yourselves and your organizations. Take the time to talk to your employees – the good ones and, more importantly, the struggling ones. It’s legal. It’s effective.

Let me know if you have any success or new insights. You could end up in The Good News! Boehm@FELTG.com

The Good News: Handling Problem Employees Really Is That Easy

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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

The Good News: I’m an Optimist, Even When It Comes to Dismantling OPM

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By Ann Boehm, May 15, 2019

I’m an optimist. I just am. Perhaps that’s why I write a monthly column called “The Good News.” Being optimistic does not always make me right about things, but somehow, I feel better trying to see the bright side.

What does this mean in the federal employment law world right now? It means I’m going to try to see the positive aspects of the President’s desire to abolish the Office of Personnel Management.

I spent 26 years working for the Federal government. I do remember a time, early in my career, when I would call OPM experts for advice and guidance. I remember being very impressed with their knowledge and the legitimate wisdom they imparted. I will also tell you that in the latter of those 26 years, I was not finding the same to be true with OPM.

Don’t get me wrong. OPM still does many things right, but it is failing greatly in the area of hiring federal employees. When I teach Federal managers how to handle problem employees, we always discuss that helping an employee improve can be vastly easier than trying to hire a new employee in the current morass of a system.

I personally dealt with OPM on a hiring matter right before I left the government. I was having difficulty filling an Employee Relations Specialist position. I went to OPM’s website to see if there was anything there that could help me. I was drawn to OPM’s hiring reform concept. I thought this was an initiative that would help creative managers bring in good people for jobs without being stuck in bureaucracy. I thought I could be that manager OPM would work with to show others how to hire more effectively. Boy was I wrong.

I wrote an email to the address on OPM’s website. Instead of getting some legitimate guidance from OPM, the OPM contact forwarded my email to the Human Resources Director for the Agency and indicated that I needed help. What OPM did not only failed to help me, but also embarrassed me with my Agency, just for trying to think outside the box.

How does this story apply to my optimism and the President’s intention to do away with OPM?  OPM is not helping Federal agencies the way it could and should. Reform attempts continue to fail. Is possible that dismantling the agency will eliminate the inadequacies? I’m going to be hopeful.

If there is no OPM, will agencies finally have more autonomy in hiring Federal employees? Can KSAs become a thing of the past? Can restrictive job series requirements disappear? In other words, can the Federal government move into the 21st century?

According to the President’s plan, existing OPM employees and offices will be moved to the General Services Administration or the Office of Management and Budget (background investigations are already on their way to the Department of Defense). I want to believe that if fresh eyes from other parts of government oversee OPM, the destructive personnel folklore and unreasonably bureaucratic aspects of OPM’s mission will be questioned and hopefully changed. It’s certainly possible that nothing will really change. And things could certainly get worse (the devil you know …). But the optimist in me believes that maybe, just maybe, if leadership from outside of OPM examines its practices, new ideas may actually move forward.

I told you. I’m an optimist. Here’s hoping!! Boehm@FELTG.com

The Good News: Federal Law Enforcement Officers are Keeping Us Safe

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By Ann Boehm, April 10, 2019

I spent the majority of my 26-year federal career working for law enforcement agencies. I once had a relative ask me, “Ann, why do you like to work with bad a–es?”  (Law enforcement officers typically chuckle when I tell them that story.) I will tell you why. Going to work every day is much easier when you support people who run into gun fire instead of away from it. Too often, we forget about the value and valor of those who protect us on a daily basis.

I was inspired to write this month’s Good News on federal law enforcement officers after I read a Washington Post article about law enforcement efforts at the oft-maligned Department of Veterans Affairs (DVA). Yep, the DVA has law enforcement — apparently 4,700 sworn officers — as do many agencies other than the ones with the letters we typically recognized (you know, ATF, DEA, FBI, ICE, USMS). DVA law enforcement officers in Long Beach, Calif., are teaming with local law enforcement and social workers to help veterans on the brink. In response to emergency calls, an officer and social worker will respond to critical situations involving veterans. Instead of just arresting the troubled veteran, the officers try to get him or her the help needed to address the demons driving the behavior. They are having success, and the program may serve as a model to be implemented elsewhere.

Federal law enforcement officers do many things. A quick search of law enforcement jobs in USAJOBS revealed that the Bureau of Indian Affairs, Department of Labor, Environmental Protection Agency, IRS, Small Business Administration, and State Department are all hiring law enforcement officers right now. Who knew?

And these jobs are not easy. Anyone watch Narcos? It scares me to watch it, but real-life DEA special agents really worked in that world. I heard their stories. They talked casually about their work in Colombia. I once met with a DEA agent who had the newspaper front page of the shot-up Pablo Escobar behind his desk – let me tell you, it was gory – because he was there when DEA agents took Escobar down! Crazy stuff! And this kind of fearless crime fighting is happening every day, whether the American people know it or not.

It’s worth noting that many federal law enforcement officers were among those “essential” workers during the 35-day shutdown who worked as hard as they always do yet did not get paid. I personally believe that appearances on the national news by Tom O’Connor, President of the FBI Agents Association, helped end the shutdown. Congress and the public don’t like to hear that criminal investigations are being compromised and hard-working agents cannot pay for medical treatment for their families. The report summarizing these things is compelling.

Of course, law enforcement officers are also human beings, and sometimes they engage in misconduct.  Those who manage law enforcement officers may not realize that federal personnel law expects law enforcement officers to be held to a higher standard than the rank and file government employees when it comes to misconduct penalties. Also, great criminal investigators do not always know how to conduct a useful administrative misconduct investigation.

We at FELTG value our federal law enforcement friends, and we want to help them all be the best they can be. We offer a training course specifically for law enforcement personnel. Reach out to us if you’d like us to come to your agency. We want the good folks who protect us to work in an environment free of toxic co-workers. When it comes to public safety and people’s lives, there is no room for problem employees.

The Good News is that we have wonderful and dedicated law enforcement personnel in many, many federal agencies who are taking care of the American public. Thank you and stay safe! Boehm@FELTG.com

The Good News: Ruby Slippers from President Trump

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By Ann Boehm, March 13, 2019

I love The Wizard of Oz  (spoiler alert – this article will be discussing key moments in this movie, so if you have not seen it, I suggest you do so before reading more). In my youth, it came on television once a year. There were no options to watch it like we have now – no DVDs, Hulu, Netflix, Amazon Prime. I waited for it and could not wait to watch it. When I was very young, I was afraid to watch it alone – the witch was very scary. I was so proud when I could finally watch it by myself.

I love when the movie goes from black and white to color. That’s when Dorothy acquires the ruby slippers right off the feet of the deceased Wicked Witch of the East, and the ruby slippers become the key part of the movie. I was so excited when I saw the actual ruby slippers at the Smithsonian Institution’s National Museum of American History in Washington, DC. Although they are just shoes with red sequins on them, they are somehow still magical.

So you know the deal. Dorothy, Toto, the Scarecrow, the Tin Man, and the Cowardly Lion follow the yellow brick road in order to get Dorothy to the Wizard of Oz and eventually back home to Kansas. Along the way, they keep getting harassed by the Wicked Witch of the West, who is pretty ticked off about Dorothy’s house landing on her sister and Dorothy’s acquisition of the ruby slippers. She asks the Scarecrow to “play” with fire, puts everyone to sleep with poisonous poppies, writes threats in the sky (on her broom, of course), and is always lurking. The witch even has terrifying flying monkeys. And she locks Dorothy in this awful tower with an hourglass to count down the time to Dorothy’s eventual doom. Dorothy’s friends rescue her and melt the witch, and then the Wizard of Oz is ready to take Dorothy to Kansas in a hot air balloon. Toto messes that up, and Dorothy is in a crisis. That’s when Glinda the Good Witch drops this bombshell – “you’ve always had the power” to go home. It’s all about the shoes! \

Gee, Glinda. Seriously, you put us through these terrible trials and knew all along the shoes had the power.

Ann – why are you talking about the ruby slippers and this movie?  Get to the point. 

Okay. Executive Order 13839 issued by President Trump on May 25, 2018, is just like the ruby slippers.

Huh? Isn’t it enjoined? What the heck do you mean?

Three Executive Orders were issued on May 25, and only some parts of the orders are enjoined. The employee discipline aspects of Executive Order 13839 are certainly not enjoined. The provisions in the Executive Order give you the power that has always been there and even reinstate some things that had been there and were taken away for a while by the Merit Systems Protection Board.

For those of you who feel like efforts to take care of problem employees have been met with opposition similar to the fire, poisonous poppies, flying monkeys, and hourglass tower, I am here to tell you that you’ve had the power all along – you are wearing the ruby slippers. You don’t have to be scared of the wicked witch any longer.

Okay, Ann.  Explain please.

Executive Order 13839 says that adverse actions should be completed during the 30-day statutory notice period. That means no long extensions. Proposal, reply, decision, suspended or maybe even gone – all done in 30 days. In fact, it further specifies that agencies should issue decisions on proposed removals “within 15 [business] days of the end of the employee reply period following a notice of proposed removal.” The statutory reply period is seven days – just seven!  You should have been following this timeline all along, but you did not know you had the power.  You needed the ruby slippers. The President (the head of the Executive Branch – your boss) is telling you to handle these cases quickly.

Then there’s the matter of suspensions versus removal.  Executive Order 13839 makes it clear that “[s]uspension should not be a substitute for removal in circumstances in which removal would be appropriate.” Further, this Executive Order also says progressive discipline is not required if the misconduct warrants a strong penalty. This is where the Executive Order ruby slippers get things back to where they used to be.

So what does it mean? GET RID OF BAD EMPLOYEES!  Use the ruby slippers!

And then there are the performance matters. How many of you thought Performance Improvement Plans (PIPs) had to be 60-90 days long? Nope. Thirty days is plenty. That’s what the MSPB has said for almost 40 years, and it’s what we here at FELTG teach.  Executive Order 13839 says “no agency shall” give an employee “more than a 30-day period to demonstrate acceptable performance,” unless a union contract requires longer. Thirty days for a PIP, folks. You always had this power. You just did not know it. [Editor’s note: at FELTG we have moved away from using the misleading acronym PIP and instead we use the more legally accurate term Demonstration Period, or DP. The law requires the employee be given an opportunity to show she can demonstrate acceptable performance, and not improve her performance.]

Now join me and say, “I will take care of problem employees.”  Click your heels three times.  You have the power, and you always did.

And that’s the Good News this month. Please send me any good news you have to share:  Boehm@FELTG.com.

The Good News

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By Ann Boehm, February 13, 2019

I know, I know.  How can there possibly be any good news after the 35-day government shutdown? But please hear me out.

Those who were required to work are exhausted, exasperated, and bummed that they did not have an opportunity to clean out closets and basements. Those who did not work are frustrated and feeling undervalued. Let’s not forget the overdue bills and debts incurred when hundreds of thousands weren’t paid for 35 days.  Everybody is angry – and that’s understandable.  You should be.

During the 2013 shutdown, I was “essential,” or whatever the buzzword of the day is for “having to work during a shutdown.” I wasn’t sure I would be essential, so I started a basement paneling painting project, expecting to have lots of time to see that to completion. But I was essential, so my “furlough project” became my evenings and weekends project.

There’s always some relief in being essential, because you know you will get paid. But then Congress also pays the non-essential employees for the time they did not have to go to work. I will fully admit that I was bitter about having to work while others did not. And we all got paid the same. And my basement still had to be sanded, primed, and painted.

Why am I going over all of this?

To move forward as an effective body of federal government employees, everyone needs to acknowledge the frustrations felt by everyone else (except maybe Congress and the President, who haven’t seemed particularly bothered by it) during and after this shutdown. Perhaps those who did get a substantial amount of paid time off can pick up some slack as they return and help those who had to work without pay. Maybe agencies can come up with creative ways of rewarding those who had to work. Maybe agencies can also figure out ways to show those who were non-essential that they are highly valued.  Most importantly, everyone needs to be mindful of everyone else’s needs. Federal employees need to work together to get this government back in shape.

Okay, Ann, you may be saying. Still waiting for the good news. Well here goes.

The American public is starting to realize that government employees are skilled, hard-working, and dedicated, and that they’re critical to the nation’s effectiveness. That is really good news.

As you know from our newsletters, federal employees have been a target for Congress and the President, and even the public. But you know the old adage: You don’t know what you’ve got until it’s gone. Now Congress is actually contemplating a 2.6 percent pay raise for 2019! Let’s hope the good will and positive feelings toward Federal employees continue.   We need that for federal workers and for the good of the country.

What else?

We at FELTG are here to help. Our instructors are available to assist the overworked among you. Along with the training we provide, we can serve as advisors, consultants, and even litigating attorneys. Need help reviewing discipline proposal and decision letters?  We can do that.  Need help reviewing investigative reports? We can do that too. Heck, we can even provide oversight and other assistance on performance-based actions and personnel litigation.  Human resources professionals, counsel, and managers out there: If you need assistance to get moving again, we can help.

Also, join me for a 60-minute webinar Boosting Employee Morale: 10 Dos and Don’ts for Federal Managers. I’ll share specific actions you can take to lead employees through these difficult times.

Any more good news?  Yes. This article will be a regular feature of our newsletter. We want you to feel good about yourself and your jobs. We are going to make an effort to highlight what is going well in government—“The Good News.”  Feel free to share any stories with us by emailing me at Boehm@FELTG.com.

We know we often focus on the crazy judges, problem employees, missing MSBP members, and Congressional attacks, among other things, but we know there is good out there.  You need to know those things. But with this column, you can stay tuned for more good news! Boehm@FELTG.com