Psychiatric Examinations – One More Time

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By Barbara Haga, June 14, 2017

Last month I wrote about “unnecessary barriers” that are included in agency performance plans and union contracts, that inhibit the ability of an agency to take action on performance problems.  This month we’re going to take a look at the OPM regulations on medical examinations.  Talk about some “unnecessary barriers.”  So, President Trump, if you want some more things to put on the list of what is getting in the way of doing what needs to be done, here’s one for you.

Quick Review – Physical Examinations

OPM’s medical examination regulations set conditions for when physical and psychiatric examinations may be ordered and offered.  If you’ve been a FELTG reader for a while, you have heard one or more of us discussing how the OPM regulations are more restrictive than what the EEOC would say about a medical inquiry being job-related and consistent with business necessity.  To sum up the regulations quickly, these are the conditions where a physical examination can be ordered (5 CFR 330.301(b)-(d)):

  • The applicant or employee has applied for or occupies a position that has medical standards and/or physical requirements, or is covered by a medical evaluation program.
  • An employee who is receiving COP or compensation from OWCP may be required to report for an examination to determine medical limitations that may affect job placement decisions.
  • An employee is being released from her competitive level in a RIF. She may be required to undergo a relevant medical evaluation if the position to which she has assignment rights has medical standards and/or physical requirements that are different from those required in her current position.

That’s it.  Number 2 is not going to come up that often and Number 3 is exceedingly rare, so the authority to order physical examinations really boils down only to Number 1.  That means that for all of the white-collar jobs that don’t have medical standards for their work (like Criminal Investigators, Firefighters, and Air Traffic Controllers do) or physical requirements set in their jobs (like an HR specialist who has to be able to drive a government vehicle to travel to remote sites that he is responsible for servicing), there is no way to require the employee to report for medical examination.

This lack of authority ties management’s hands no matter what kind of problems the employee is having on the job – whether it is an IT Specialist who can’t be regular in his attendance or a technician reporting to duty after a recent diagnosis of MRSA.

Quick Review – Psychiatric Examinations

The regulations on psychiatric examinations (5 CFR 339.301(e)) are even more restrictive.  These may only be ordered if the job says you have to be sane to do it, and there aren’t many.  Okay, I embellished a little.  The regulation says that a psychiatric examination or psychological assessment is part of the medical standards for a position having medical standards or required under a medical evaluation program.  What kinds of jobs would these include?  Criminal investigators, police officers, and other similar positions.

The only other time that a psychiatric examination can be ordered is when the agency had authority to order a physical exam, and that physical exam doesn’t give an explanation for behavior or actions that may affect the safe and efficient performance of the applicant or employee, the safety of others, and/or the vulnerability of business operation and information systems to potential threats.  So, we would be limited to jobs that fall under Number 1 in the prior section for this authority to apply.

A Glimmer of Hope

Imagine my excitement in December when OPM put out proposed 339 regulations.  I was hoping that all of the pages of print pointing out that the regulations were too restrictive and prevent agencies from dealing with real workplace situations in an effective way were finally going to bear fruit.  It didn’t take long to realize that this was not to be.  The final regulations were effective on March 21, 2017.  They were caught up in the review of regulations by the incoming administration.  Unfortunately, these weren’t stopped.  So, the conditions described above for ordering exams are virtually the same as they were before the revision.

What’s the Big Deal?

If you have ever had the unfortunate experience of working on a case where the employee continues to report to work when he is clearly not able to perform, you will appreciate why these restrictive regulations are a problem.  When all of the suggesting and brilliant written notices you can come up with have not convinced the employee that something has to be done to resolve the situation, what are you supposed to do?

The Pension Benefit Guaranty Corporation had just such a problem.  The case is Doe v. Pension Benefit Guaranty Corporation, 117 MSPR 579 (2012).  Their GS-13 Administrative Officer was exhibiting “unusual and inappropriate behavior.”  Through emails and in-person interactions with agency employees, she accused them of breaking into her home, providing information to a transit officer about her location on a train, orchestrating things to happen to her at work and outside of work, listening to her work conversations, communicating with each other at work via earpieces, observing her at work via hidden cameras, and having a hidden agenda toward her.

An Administrative Officer job wouldn’t normally have physical requirements that would have allowed the agency to order a physical exam to rule out physical causes of her behavior.  The agency asked a Federal Occupational Health medical professional review the statements. The medical professional determined that the employee exhibited paranoid behavior, could be a danger to herself or others, and should undergo a fitness for duty exam.

PBGC had authority under their union contract to do the examination, and so they sent the employee to be seen by a mental health professional.  The answer that came back was that she was experiencing a psychotic delusional disorder and was not fit.

The consequences of ordering that examination must seem never-ending to the PBGC staff.  There was another Board ruling in 2016 and an EEOC decision in February of this year on this case.  Check back next month for the next chapter.  Haga@FELTG.com

Answering OMB’s April 2017 Directive

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By Barbara Haga, May 2, 2017

I am chalking this column up to doing my patriotic duty.  OMB Directive M-17-22, Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce, dated April 12, establishes a number of initiatives for changing what work is done and how work is done within the Federal government.  Agencies have a deadline of June 30, 2017 to prepare a plan to maximize employee performance.  Paragraph D.iii.1 requires that agencies review their procedures for dealing with poor performance and conduct and to “… specifically review whether their policies create unnecessary barriers for addressing poor performance.”  OMB is requiring agencies to remove steps not required in statute/regulation to streamline processes for dealing with poor performance and to establish clear guidance on the use of PIPs.

I have seen many of these “unnecessary barriers” that are included in agency performance plans and union contracts in the past ten years, so I am making a list of what needs to be eliminated.  Of course, for some of you this will mean bargaining your way out of things that someone agreed to in the past.

Barbara’s Top Four

Being in this top four list is not a good thing.  These are things that either drag out the process, allow employees to get away with doing less, create extra hoops for managers, or give employees more things to challenge through the grievance process.  We don’t need any of that.

  1. Setting a time frame for a PIP. There is nothing in 5 USC 43 or 5 CFR 432 that establishes a minimum time frame for a PIP.  Why would an agency do so?  Should it not be what is reasonable for the position?  One agency I have worked with has established a five month improvement process – a 30-day pre-PIP and then 120 days of an actual opportunity period.

If it is a GS-6 Accounting Technician who is performing hundreds of transactions in a month is 30 days not enough?  If is a GS-14 Aerospace Engineer at NASA working on design of a new spacecraft, maybe we need 90 days to get enough results to be able to make a determination whether the level of performance has improved.  It depends on the complexity of the work.

What difference does it make if we HR practitioners are just overly cautious and make a PIP extra long?  The longer the PIP the more burdensome it is on the manager who is supervising the employee.  Believe me, I know.  I have done two of these actions on employees who worked for me.  Remember what a PIP is – the employee is performing normal work assignments in as normal a work situation as the manager can provide.  However, the manager has to review the work on the elements under which the employee is on notice, determine what is correct and what isn’t, document all of that, and burn up the copy machine keeping copies of all of that work – all while doing everything she would normally be doing, meeting frequently with the employee on the PIP and keeping notes about that, and not being obvious to the other subordinates about what is going on.  It takes its toll.  The employee is, and has been, paid to perform this work and he should be able to perform it.  The managers are not the bad guys in this process, so we shouldn’t put a more onerous requirement on them than what is necessary.

Recommendation:  Revise your performance plan to say what 5 CFR 432.104 says about the length of the PIP:  For each critical element in which the employee’s performance is unacceptable, the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee’s position.

  1. Mandating extensive amounts of assistance. We should also remember that the PIP is not intended to train an employee on the work their position requires – they are supposed to have the ability to do the work already.  It is an opportunity for them to show that they can perform at an acceptable level with assistance.  Some agency PIP requirements include reviewing every single piece of work the employee performed, even when it is a higher grade position. I don’t view that as assistance; it essentially is taking on the employee’s responsibilities.  In other words, the work requirements are watered down so much that even if the employee meets the PIP requirements she isn’t performing at grade.

Other agencies include assignment of mentors to the employee in the PIP.  If the employee is already qualified to do the work of the position, why would he or she need a mentor?  If, because of the span of supervision, the manager is stretched too thin to be accessible to the employee and someone is covering that management capacity to give guidance and review results of work, I am not sure the term “mentor” is accurate – work leader sounds more like it.  Mentors aren’t usually supposed to judge – they offer guidance and suggestions.

Recommendation:  Make sure that the performance system does not require anything further than “The employee will be provided assistance, which will include regular feedback from the rater on the elements in question during the PIP period.”  Anything beyond that which the agency chooses to give is just whipped cream on top!

  1. Requiring that an Unacceptable rating be assigned. There is no requirement in law or regulation that an Unacceptable rating be assigned in order to take an unacceptable performance action.  In order to propose a downgrade or removal based on unacceptable performance 5 CFR 432.105(a)(4) requires that the notice contain “both the specific instances of unacceptable performance by the employee on which the proposed action is based and the critical element(s) of the employee’s position involved in each instance of unacceptable performance.”  Requiring assignment of a rating does a couple of things.  The worst is that it creates another grievable action (or at least a request for reconsideration depending on your appraisal system) that will be running at the same time that the adverse action is being proposed and decided, using the same evidence that will be reviewed in the 432 action.  No practitioner in his or her right mind should want that to happen.

To assign a rating, you must also meet the minimum appraisal period established in your performance plan.  That is typically 90 or 120 days.  If you were beginning an action near the beginning of a cycle, your PIP would have to be at least that long.

Recommendation:  Eliminate any requirement to assign of a rating of record of Unacceptable at the end of a PIP or in order to proceed to a performance-action.

  1. Using Minimally Successful ratings. If your agency includes a Minimally Successful level (Level 2) on the element (summary ratings don’t matter here), then it is time for it to go.   If you have Level 2 then the maximum amount of improvement you can require an employee to reach during a PIP is Level 2 (try reading these cases if you don’t believe me: Jackson-Francis v. OGE, 107 FMSR 73 (2006); Henderson v. NASA, 111 FMSR 173 (2011); and Van Pritchard v. DOD, 112 FMSR 27 (2011).  Your friends at agencies that don’t have a Level 2 rating on a critical element can demand that their employees reach Fully Successful (Level 3) performance to successfully complete their PIPs.

At a minimum, Federal agencies should be able to hold employees to Level 3.  Allowing an employee to hang out at Level 2, potentially for years, and losing just their within-grades and some of their retreat rights in RIF, is crazy. But if you have a Level 2, that’s all you can require.

Recommendation:  Change your element rating scheme to eliminate Level 2 on a critical element.  Level 2 in the summary rating scheme also needs to go if you don’t have non-critical elements.

I wish I had more space.  I could have put together a longer list!  Haga@FELTG.com

Attend a special program on this topic: Maximizing Accountability in Performance Management, July 25 in Washington, DC.

Costly Bad Advice

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By Barbara Haga, April 19, 2017

I was going to write about performance plans this month, but a situation about some advice given by an HR practitioner has been gnawing at me for a while and I need to vent.

Background

Commonly a situation comes up in a class somewhere where a supervisor wants a second opinion on the advice that he or she was given regarding a particular scenario.  I usually start with the caveat that there are local issues, local past practices, union contract provisions, etc. that I am not privy to that might change the answer.  Sometimes the answer I give is significantly different than what their legal office or HR office advised.  I try to make them feel better by telling them that this is art and not science, and two practitioners looking at the same facts may very well come up with different approaches to a particular situation.  Sometimes, I tell them I learned this business in an agency that was known for being tough on disciplinary and performance problems, so my answers may suggest stronger approaches than what is typical in their agencies.  But, sometimes when I hear the answers that were given, my jaw drops and I am speechless.  This is one of those cases.

John, the Firefighter

A Firefighter, who we will call John, sustained a severe hand injury outside of work.  The projected recovery period was going to be several months.  As a result of this injury, John was unable to meet the lifting, carrying, pulling, and climbing functions of his job.  A Firefighter must be able to lift and carry someone, climb ladders, operate equipment, handle hoses, put on firefighter gear, etc.  John could not perform these requirements per the medical certification that he provided from his health care provider.

In addition to the Firefighter qualifications, there is also a requirement to be a certified Emergency Medical Technician (EMT).  In order to fulfill those duties, there could be a need to lift and turn a patient, put a patient on a stretcher, insert an IV, etc.  All of these duties were things that John’s injury prevented him from doing.

Apparently, John was a good employee and the Fire Department was willing to wait for him to be able to return.  Unfortunately, John’s injury kept him out of work long enough that he ran out of leave.  So, he asked to come back to work.  In a Fire Department, there must be X number of qualified Firefighters on duty for each piece of equipment at each station at all times.  For example, when there are not enough Firefighters arriving in the morning for the new shift, someone from the prior shift is held over on overtime to fill the gap.  The bottom line is that there is no such thing as a “light duty” Firefighter.  An injured Firefighter might be sent to work in Dispatch or could be assigned to the Inspection Unit to work while he or she is physically disqualified, but those slots are limited.  Often those slots are held for Firefighters on light duty as a result of an on-the-job injury, since keeping those individuals at work reduces the chargeback costs under Workers’ Comp.  So, John was advised that there was no light duty work available.

Up to this point, everything made sense.

The Advice from HR

Somehow the matter was referred to HR.  I don’t know how that happened.  It may have come up as a reasonable accommodation request, or it may have been raised by the union, but eventually an HR practitioner responded.

The answer: the Fire Department was required to accommodate John by allowing him to return to duty in the Fire Station and to work there performing whatever duties he was able to complete.  If they did not comply, Fire Department management could be facing an enforced leave action that they couldn’t win.

That advice is so wrong I hardly know where to begin.

Not a Qualified Disabled Person

John did indeed have a physical impairment that limited several major life activities such as lifting, reaching, working, etc.  But, there is no way he can be determined to be a qualified disabled person.  The definition of qualified disabled person is that the individual can perform the essential functions of the position with or without accommodation.  John could not perform firefighting and EMT functions without accommodation – and what accommodation could be given that would allow him to do so?

If John is not a qualified disabled person, then he is not entitled to accommodation.  So, the advice that the Department was required to accommodate John is not correct.  The EEOC ruled on a case just last year with similar facts.  In Marlin K. v. Department of the Navy, EEOC Appeal No. 0220140005 (2016), a Wastewater Treatment Plant Operator was injured in an off-duty car accident which left him with multiple injuries that precluded him from climbing ladders and stairs, walking to collect samples, and lifting more than ten pounds. Although the employee asserted that the agency could have accommodated him by assigning a coworker to perform the physical duties of his position that violated his medical restrictions, the EEOC found that the agency was not required to remove any of the essential duties of the position as a reasonable accommodation.

The “Light Duty” Position is not a Real Job

If John could have been assigned as a Dispatcher or Inspector then he could have performed duties in a recognized position, but as mentioned earlier, there were none of those slots available when John tried to return to duty.  To have John come in and “do whatever he could do” doesn’t make sense.  I suppose he could fill out paperwork and check tags on equipment, but there wouldn’t be many Firefighter tasks that he could do.  It is at best make work, and might comprise a few hours of the day, but certainly not a full shift.

Someone Else was Being Paid to do John’s Job

Remember, there must be X number of qualified Firefighters on duty at any time.  Even though the accommodation required that John be on duty and paid, someone else had to perform the demands of his Firefighter position since he is not physically qualified to do so.  Thus, someone else was brought in, likely on overtime, to perform John’s duties.  I don’t know of any EEOC decision anywhere that requires an employer to pay two people to do one job.

How Could this be Enforced Leave?

We started with some basic facts about John.  Because of his injury, he is not qualified to perform the duties of his assigned position.  John knows this.  His doctor knows this.  Management knows this.  John wants to return to work because he has run out of leave.  An enforced leave action is putting someone on their leave without their consent.  If it is done by following due process for cause, the agency should be sustained.  It is when it is done without due process that agencies get in trouble.  In this case, there would be cause for a suspension – it’s an inability to perform case. This principle is not new.  See Pittman v. MSPB, 832 F.2d 598 (Fed. Cir. 1987).

The Cost of the Bad Advice

This organization covers a region of the United States.  When they got the response from their servicing HR office, it was transmitted in writing to all of their Fire Departments as the requirement for handling this type of situation.  From now on, every time there is an outside of work injury that disqualifies someone from their Firefighter job, they will repeat what they did here.  It is a costly mistake that could be repeated at multiple locations in the future.

I think sometimes in the HR world we forget what the real-world impacts are of the answers we provide.

What Should have been Done?

John should have been instructed to apply to the leave donor program.  Perhaps enough other employees would have recognized the dire situation John was facing and would have given him enough leave to get him through the months he needed to recover.  He could have been instructed to apply for FMLA, although in this case, it seems John was a good employee and no one in management was debating whether they would wait for him to come back to full duty and they were willing to give as much LWOP as he needed.

If John insisted that he should be accommodated, he should have been advised in writing explaining why he did not meet the conditions for accommodation.  If he tried to return to work, the agency could have suspended him for inability to perform, either a regular suspension if there was a set return to duty date or an indefinite one if the date was not known.

Unreasonable Accommodation

The requirement in disability cases is “reasonable” accommodation.  I hear too often of cases where the accommodations are unreasonable – like this one.  I don’t know if practitioners don’t know that not everything can be accommodated or that they are so afraid of a finding of discrimination that they advise steps beyond what management’s burden should be, but we owe it to those to whom we provide advice and guidance to do better than this. Haga@FELTG.com

Performance Recognition – Worth the Costs?

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By Barbara Haga, March 15, 2017

This month I am continuing the discussion regarding whether performance recognition is a productive part of the performance management process.

Grievances and Reconsideration Requests

For some agencies, it seems that the design of appraisal systems, including in some cases the tying of awards to appraisals, is all about avoiding grievances.  It’s not whether it’s a good program, or accomplishes the goals of performance management, or meets the need for feedback, it’s whether all of the guesswork has been eliminated so that the appraisals can be defended if there are challenges.  Grievances and requests for reconsideration can be a huge drain on agency resources, so trying to avoid them is a reasonable response.

Grievances can run the gamut, from a challenge to one employee’s summary rating to an institutional grievance filed by the union about the entire rating system.  Depending on what your appraisal program and/or grievance system allows, there could be a grievance about an individual element rating in an employee’s appraisal, even though it wouldn’t change the overall rating.  Unless the matter is excluded, comments written in an appraisal may also be grievable.  Add in pay-for-performance and the ante goes way up and is likely to increase the number of grievances, because now paychecks and ultimately annuities are at issue.  If you tie awards directly to the level of appraisal (i.e., everyone rated Level 4 or 5 gets an award but not those rated Level 3), then you are likely to generate grievances because employees want a share of the pie.  The number of places where something could go wrong is mind-boggling.

An Illegal Appraisal System

Let’s take a look at a grievance about appraisals that had far reaching and also costly impact.  You can read about it at http://www.govexec.com/oversight/2007/09/arbitrator-rules-against-sec-pay-for-performance-system/25249/#.WKhpAb8NM3k.email and http://www.govexec.com/pay-benefits/2008/10/sec-union-settle-pay-for-performance-case/27829/#.WKho5xF4C2Y.email  The Securities and Exchange Commission (SEC) implemented a pay-for-performance system in 2003.  The system had 15 pay levels, with up to 31 steps in each level.  An employee with an Outstanding rating could move up three steps in a year, resulting in a 4.5% salary hike.  In impasse negotiations, the Federal Service Impasses Panel allowed SEC to implement because the Panel found that the system “reflects a pay structure that was well-researched, based on best practices from other agencies, meets the agency’s needs, and is comparable to those of other financial regulatory agencies.”  So, how did this well-designed system fall apart?  Apparently, the performance requirements were not specific to the jobs that employees performed.  According to NTEU, who represented the effected employees, the measures of performance were not specific to the jobs performed by the employees and thus employees had little way to know what the supervisors or the review board that gave the increases was looking for.

That was just part of the problem.  The union pointed out that these not-so-clear performance requirements had an adverse impact on African-American employees and employees 40 or older, who were statistically rated lower than their counterparts.  The matter was taken to arbitration.  Apparently, the agency was not able to substantiate that the ratings were legitimate, and the arbitrator ruled in 2007 that the system was illegal because it was discriminatory.  The end result was an award of $2.7 million that was to be divided among the African-American employees and older workers who were affected by the discrimination.

In addition to the settlement to correct the past discrimination, the SEC and NTEU came to an agreement about new performance criteria that they designed together.  The new system was based on private sector benchmarks, a review of each job to determine the measures that fit each one, and training for managers.  [Note:  I thought the content of performance appraisals was not subject to negotiation, but then I get confused some times.  It happens when you are old enough to remember what the huge issues were when the Civil Service Reform Act of 1978 was initially implemented.  See National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA No. 119 (1980) for starters.]

Anyway, negotiable or not, the agency and the union agreed on specific performance measures.  I am reading that to mean that the measures took out some of the subjectivity and replaced it with more objective measures.  It’s common that unions want that.  They generally like to see a system that limits the amount of discretion that the manager has – and objective measures do that.

Creating Measures that Remove Subjectivity

My union friends are probably not going to like this part of the column.  (And, yes, I do have some union friends).  While I understand what their interests are, I am concerned about what I consider a watering down of performance measures.  In organizations where unions tried to limit the judgment being applied and the discretion that the supervisor had to assess the work and replaced that with more “objective” measures (like SMART measures), the agency gave up assessing the higher level skills.

What does that look like?  Instead of measuring by things like “applies appropriate techniques within accepted guidelines in dealing with complex situations, employs technical knowledge and strong skills in persuasion to convince recipients of reviews/audits of the need for changes to obtain their commitment to make changes, or applies judgment in interpreting guidelines and advances reasonable alternatives to meet goals of the program” the measures become more like “completes 90% of audits on time and without the need for significant technical changes.  Three or fewer minor errors in an audit report are considered acceptable.  Any delays in meeting assigned deadlines must be approved in advance by the supervisor.”

Why would an organization want to measure by objective standards?  It makes it easier to defend the ratings, as apparently the SEC was unable to do.  And, when the awards are linked to the rating level without any independent recommendation whether an award is warranted, then more grief of explaining why one received an award and another didn’t is eliminated.  But, do awards in such systems really motivate people to do more and do better?  I don’t think so.  What I have seen is that it just becomes some extra dollars tied to the appraisal.  In the days when I started my career, performance awards were handed out in ceremonies in front of coworkers.  Now, in some organizations you just get your copy of the SF-50 with no fanfare – and sometimes you are given that SF-50 in the closet and sworn to secrecy in case anyone asks what you got.  We have come a long way, Baby, but I think we went the wrong way. Haga@FELTG.com

Is Performance Recognition Necessary or Beneficial?

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By Barbara Haga, February 15, 2017

I am going to jump out on a limb here and suggest that recognition tied to performance appraisals is at best benign and not achieving what it is intended to do, and possibly a detriment to performance management in Federal agencies.  For this piece, I am talking about cash awards and Quality Step Increases (QSIs). I would ask each reader to reflect on these questions.  Have you ever changed the amount of effort you put into your work or the techniques you used to complete your work based on the hope of getting some type of performance recognition?  If you got an award, was there a spike in your performance because you were pleased to be recognized or grateful for the extra money?  Did you do something extra beyond what you were normally going to do because you were recognized?  Did that spike in your performance last?

Intrinsic and Extrinsic Motivation

Taking a hugely oversimplified view of what motivates people, I would define intrinsic and extrinsic motivation for employees as follows.   Intrinsic motivation is what comes from inside – how you feel about the work, how it aligns with your values, whether it achieves an end you believe is worthwhile, etc.  Extrinsic motivation is external, in this case largely coming from your employer or possibly your peers.  These things encourage you to achieve in order to be rewarded or to avoid a negative consequence.  It could be a cash award, recognition in front of your peers, a promotion, etc.

I think many of us who work in the employee relations business do it because we believe that what we are doing is important and that the organization as a whole is better for it, if we do our jobs well.  In my experience, I have found that most HR practitioners in this line of work are more motivated by the intrinsic rather than the extrinsic factors.

I have been asked many times about why NASA ranks so highly in surveys like the Best Places to Work.  I believe it is because of intrinsic motivation.  Employees in the science and engineering disciplines grew up wanting to do this kind of work, wanting to be part of NASA.  In many areas, they are working on cutting edge science and making contributions that change the world.  You can’t buy that kind of motivation – it is intrinsic. It is also contagious.  Even the folks in contracting and budget seem to align themselves very easily with that view. Other agencies want to copy what NASA does to raise their scores on those surveys.  I don’t think it is what NASA does but rather who NASA employs.  I would suspect that if you looked at places like NIH, the CDC, and the EPA you would find a similar level of intrinsic motivation.  I am not sure that an agency can accomplish with external motivators what the employee doesn’t already bring with them.

Are Performance Awards Effective Extrinsic Motivators

Here’s a scary thought.  Should an agency really want to buy a person’s best performance?  If you are a manager, is that the person you want?  Or, do you want the person who sees the work as a challenge or that the goal is something valuable to the organization?  Would you feel more comfortable with the one who takes the assignment because it is important and will ensure that management’s interests are protected or an employee who says, “Yes, I’ll volunteer to do that training session, or I’ll take that grievance that covers fifty individual employees, or I’ll put together the template for adverse action letters on that charge we’ve had issues defending – if you pay me a little extra”?

I am sad to say that I don’t think performance awards are effective motivators.  First of all, in some organizations the awards are virtually automatic and everyone rated Fully Successful or higher gets one.  So, an employee comes to work and does what is expected and is rewarded.  I have worked in some places where the question wasn’t whether recognition would be granted, since essentially everyone got something, but rather when the payments were going to be processed.  There really wasn’t a question whether an employee would get one; people were already planning on the payments.

Because some unions have negotiated awards and/or award amounts, they have essentially become almost an entitlement.  I remember reading at the time of the 2013 furloughs that the IRS wanted to eliminate award payments in order to reduce the number of furlough days, but the union wouldn’t agree to eliminate them.  NTEU Chapter 67 (http://www.nteu67.org/) has a post on their website dated 11/22/2016 that echoes that thinking which is apparently still alive and well.  It says, “While you were working hard, NTEU was fighting hard to make sure you received your performance award.  In this tough budget environment, the IRS tried to cut the awards program, but we fought successfully to keep it.”  So, in the union’s view it is a good answer that in order to deal with budget constraints, it isn’t an option to reduce or eliminate award payments?

Secondly, we have that fundamental problem with what the employee must do to achieve one.  Is there a clear explanation of what is expected at various levels of performance in order to be recognized?  Or, are managers paraphrasing the famous definition of pornography and telling employees, “I can’t define what it takes to be Outstanding or Superior, but I’ll know it when I see it.” How are award decisions made in such an organization?  Is it favoritism as sometimes employees suggest, or is it the “halo” effect – those who have been viewed as achieving significant results in the past are always viewed that way?

Now, back to the questions I posed at the beginning.  How many of you were inspired to reach new levels of performance by a performance award you’ve received?  Is your organization more affective in meeting agency goals because you have an effective performance recognition program?  What I have observed in many organizations is that it may be a nice “thank you” but it is not an effective extrinsic motivator.

More on this topic next time. Haga@FELTG.com

[Editor’s Note: As the FELTG staff psychologist, I applauded Barbara’s common sense conclusions and add that they are routinely backed up by the scientists who study motivation. If you read the literature on awards as motivators, you find three bottom lines:

  • Annual awards programs such as those found routinely in the federal government have never (as in “not ever”) been proven to motivate increased performance.
  • In contrast, there is decent evidence that piecemeal awards (sometimes referred to as “performance contingency reward systems” by those trying to sound impressive) do indeed act to motive increased production. For example, workers who dig ditches who are paid by the foot as compared to being paid by the hour dig longer trenches.
  • However, piecemeal awards DO NOT seem to motivate increased quality or creativity. Also, individuals who have been given piecemeal awards for some period of time, and then who are denied future piecemeal awards, reduce their production levels below those employees who never received piecemeal awards.

Whether we like it or not, awarding federal employees to improve the quality of their work is not supported by science. And, it’s expensive.]

Civil Service Reform and Performance Recognition

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By Barbara Haga, January 18, 2017

I am following up with another article regarding another recommendation included in the report Governing for Results: A Transition and Management Agenda to Lead Policy Change in a New Administration, issued on October 17.  This time I want to talk about performance recognition for Federal employees.

Taking Authority Away from Agencies  

The report notes that previous performance systems have not lived up to their potential, and the private sector seems to be moving away from traditional performance reviews.  The Transition Group acknowledges that there was no clear consensus in the group about what a new system should look like.  However, on page 25 of the report they list some options in a section entitled “Expand Employee Rewards and Pay-for-Performance Systems”:

Non-Financial Reward Systems: As an alternative to or companion to performance evaluation systems for all employees, create a robust employee recognition and reward initiative. 

Financial Reward Systems: If financial rewards are used, the Administration may want to take decisions for those rewards outside of the agency and provide for a third-party validation entity. To buffer criticism that bonuses are being given out at taxpayer expense, consider partnering with foundations in each mission area of government who could pledge funds to reward federal employees.

The first recommendation skips over the fact there is a merit principle that requires agencies to reward performance.  5 USC 2301(b)(3) states: “Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance (emphasis added).”  5 USC 4302(b)(4) requires agency appraisal systems to provide for “… recognizing and rewarding employees whose performance so warrants.”  If any of the performance recommendations included in the report are going to be implemented, then not only is 5 USC Chapter 43 going to need to be overhauled, but the merit principle is going to need to be changed, too.

The Transitions in Governance group is recommending non-financial rewards as an alternative or a companion to performance recognition. I am not sure what they have in mind.  It could be anything from the array of offerings under 5 CFR 451 from time off awards to career recognition awards to employee of the quarter programs.  It could be something entirely new.  Agencies actually have very broad latitude to create incentive award programs under the law and regulations as they exist today.  I agree with the transitions group that an incentive award program can be an effective management tool.  I think our best bet with getting a “bang for the buck” with recognition is to do it when something exceptional happens with an incentive award.

The group’s recommendation about taking award decision-making authority away from agencies is difficult to understand.   If we can’t have confidence in the decisions that managers make about that 1% or 1.5% of the personnel budget that most agencies are allowed to allocate for awards, how is it reasonable to count on them to manage huge programs, prepare regulations and defend agency policies to constituents?  If they can’t be trusted to effectively deal with decisions on rewards for good employees, how could we expect them to make tough decisions about discipline and firing and answering grievances and EEO complaints?

I think this recommendation buys into a perception that Federal managers don’t do a very good job of managing.  Surely there are examples of where there have been failures, but in a lot of cases, I think the awards system drives the bad decisions.  I don’t think that giving the authority to someone else is the answer.  Third-party validation to me would turn performance awards into a bureaucratic nightmare.  The award recommendations would be handed over to a group far away from where the accomplishments took place to people who would be outside of normal agency control.  Handing off important management decisions to folks outside of the chain of command is a scary proposition.  Folks who have a vested interest and have knowledge about the details of the work should be judging who warrants recognition.  We have seen problems with this handing off of authority before.  Anyone out there remember Merit Pay pools from the ’80s?  One could also ask the DoD employees who were under NSPS how well received the pay pool system was where managers many layers of supervision away from the recommending manager were deciding on whether the ratings and thus the pay rewards were warranted.

Get the Money from Somewhere Else

The second half of the recommendation says agencies should get some foundation to give money to use to reward Federal employees to combat the perception that taxpayers are footing the bill for the awards.  Taxpayers fund the salaries, and awards are just a small portion of that amount.  I frankly don’t think the average taxpayer cares until awards are handed out to those who don’t seem to deserve them – such as VA folks who are not taking care of patients as they should, or IT professionals whose programs don’t meet the requirements they were designed to address, or managers who don’t manage.  I don’t think it is an issue of using the taxpayer dollars, but making sure they are used where warranted.

The report takes a different tack.  To me, this is one of the stranger recommendations in this report.  Maybe NASA could find a group to give them award money – and maybe other agencies like NIH or CDC could do so.  But, I would think that a foundation would want to give their money in furtherance of some end that they want to foster.  For example, an aerospace group might give money to “reward” the entities within NASA that do aeronautical research but not to other parts of NASA engaged in climate research or space flight.  But, seriously, what about other agencies that don’t have that “draw’?  What foundation is going to sign up to give money for awards to the TSA, IRS, or SSA?  If a foundation is giving money, isn’t it reasonable to think that they are expecting something for it – some program achievements related to their areas of interest, some report back on what was achieved, some answers about who received award money?

A Better Idea?

I have an alternate solution.  I think the appraisal system would work much better if we got rid of performance recognition completely.   In next month’s column, I’ll explain why.

Haga@FELTG.com

Civil Service Reform and Probation

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By Barbara Haga, December 14, 2016

I am taking advantage of this FELTG vehicle to share some thoughts that the new administration might take into account in making decisions about what sort of reform might improve the civil service system.  Lots of people are doing this – there seems to be a real possibility that we might see it in the next administration.  It’s time.  It’s been 38 years since the last major overhaul of the civil service system.

In this article, I am taking exception with the recommendations that have been made by one group. A report entitled “Governing for Results: A Transition and Management Agenda to Lead Policy Change in a New Administration” was issued on October 17 by a group of 12 organizations, including the Partnership for Public Service, the Federal Times, Government Executive, Young Government Leaders, and the Senior Executives Association.  You may access the document at this site:

https://s3-us-west-2.amazonaws.com/cmpdigital/transitions/Transitions2016Report.pdf

The report says that it was prepared to make suggestions on improving management of the Federal government, and was the culmination of 18 months of research “…involving a bipartisan collection of political and career officials in a variety of Administrations.”

When I read the report, I was surprised by some of the recommendations, and I will address other parts of the report next month.  In this column, I am going to deal with recommendations regarding the probationary period, including the suggested fix as well as the information it is based on.  There are some well-known organizations and the association that represents the interests of the Senior Executives whose names are on this report.  It is regrettable that they are confused about the basics of due process and that they are advising the new administration based on misinformation.

A Three to Five Year Probationary Period 

Page 27 of the report contains the following:

Currently federal employees receive merely a one-year probationary period and on day 366 they are automatically (without action from the supervisor) afforded permanent status.  This current policy (which is not enshrined in law and can be administratively changed) encourages a passive approval of employees who later present performance problems.

The Administration should extend the probationary period to 3-5 years and require a pro-active certification by a manager that a probationary employee should be granted permanent status.  If an employee is not certified by the 3-5 year period, the employee would be automatically terminated.

Part of the incorrect information here is that the employee becomes “permanent.”  Permanent is a term we use in the staffing business when a job doesn’t have a time limitation, like a temporary or a term appointment would have.  Probationary employees don’t become permanent, what they acquire is appeal rights.  So, to take action on day 366 involves the full complement of due process rights, including notice, right to representation, right to review the material relied upon, and a chance to appeal to the MSPB.

Those of us with significant experience in the business know that it isn’t always a one-year probationary period.  For example, non-preference eligibles in the excepted service have a two-year trial period before they acquire rights, not a one year period.  An employee converted in place may have a probationary period that is shorter than one year, because temporary service is credited toward completion of the probationary period (remember Van Wersch and McCormick from a few years ago?).  If you are not familiar with those two decisions, the MSPB prepared a report on navigating the probationary period which you can read here:

http://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=276106&version=276415&application=ACROBAT.  As recommended in the report, OPM revised the regulations regarding crediting service toward completion of the probationary period.  Final regulations were issued on February 7, 2008 (73 FR 7187-7188).

The transition report is correct that OPM implements regulations to control the length and operation of probationary periods.  But their regulations don’t confer appeal rights – that’s 5 USC 75.  So, OPM can require probationary periods of twenty years, but the employees are still going to have appeal rights on day 366.

OPM can’t resolve this – if they could have I think they would have done it a long time ago.  The report should suggest that Congress change 5 USC 7511(a)(1)(A)(ii) to eliminate the phrase “who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less,” so that prior service doesn’t count.

Do We Need that Long to Decide?

I, for one, don’t think we need a longer probationary period.  I think we need to better manage what we have. I have never seen a case, in my decades of working in this business, when the manager didn’t know pretty quickly that the person didn’t have what the job required.  It just took him or her ten or eleven months to come to HR to do something about it.

Have we in the HR business contributed to not properly utilizing the probationary period?  I think we have.  In the olden days when I started doing ER work, most agencies sent notices to managers about 90 days before the probationary period was set to end requiring a certification that the employee should be retained.  With automation and downsizing in some agencies’ HR staffs, these certification reports were dropped and HR offices said that managers could now see the probationary period ending date in the system and that they should stay on top of that and let us know when something was going wrong.

I agree with the report’s suggestion that affirmative certification should be required.  I would propose that the notice go to the supervisor at six months and ask for one of three things: 1) an affirmative response at the six-month point the employee’s performance and on-the-job conduct support a positive decision on retention, 2) a response that the supervisor is undecided at this point regarding retention (which will trigger contact by the assigned HR/ER Specialist), and 3) a response that the supervisor recommends ending the employee’s employment (which will trigger contact by the assigned HR/ER Specialist.)  Then, of course, someone in HR needs to follow up on these reports to make sure that they are returned and, if not, that triggers contact by the assigned HR/ER Specialist.

A couple of other things are needed.  I would suggest repeating the notices at 9 months.  Top management needs to convey the message that the selection process isn’t the end – that until a final decision has been made to terminate or retain, the manager is still responsible for the decision about this use of precious resources.  Also, the HR staff needs to look at this use of their time as a good investment – not a burden.  If there is a bad match, we have one limited period to identify that and separate the employee.  If we wait till later, it’s a lot more work with more risk.  Who wouldn’t say that it is a reasonable use of one’s time to take action the easy way?

As always, comments are welcome! Haga@FELTG.com

Who’s in Charge?

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By Barbara Haga

Last December I wrote about several MSPB decisions that included “Christmas party” in the text.  I thought it would be reasonable this year to follow up to see what other decisions had been issued in the last year or so.  I expanded the search to include EEO cases and “holiday party.”  There was a lot to work within those results!

Who are these People?

In the case of Margorie L. v. Department of the Army, EEOC No. 0120142868 (January 8, 2015), the Army attempted to dismiss a complaint that included issues based on sexual harassment and reprisal.  The events on which the sexual harassment charges were based took place at a holiday party.  The holiday party took place on December 13, 2013.  When you read the information below I hope you are thinking what I did – who are these people and how could this kind of behavior be going on at an official function today?

The complainant was an Environmental Protection Specialist.  At the holiday party, a coworker introduced her to the audience at the event as a girl “who I know really likes to ‘Ride ‘em Hard.’”  The coworker also hung a sign around her neck that said “Ride ‘em Hard.”  The complainant asserted that agency managers were present at the event and no one intervened.  There were photographs of her wearing the sign that were posted on the agency intranet.  After the event, the complainant stated that numerous coworkers continued to make comments to her such as she would get promoted because she liked to “ride ‘em hard.”

The Army dismissed the complaint.  The agency’s position on the sexual harassment issue was that it was a single incident and that it took immediate and appropriate corrective action when it removed the photos from the intranet.  The EEOC reversed the decision dismissing the complaint.

In its most positive light I suppose one might think that the comments meant that she was tough on enforcing environmental regulations, but I think there’s enough double entendre there that most of us would understand that this also could mean something quite different.

“That’s just Cat being Cat”

Leevine “Cat” Williams worked as a Physical Science Technician at the Navy Drug Screening Laboratory facility in Jacksonville, FL.  The Navy removed him for conduct unbecoming with a list of specifications related to inappropriate contact with female coworkers.  The main issues in the case, and the specifications that were ultimately sustained, involved his behavior at a Christmas party on December 19, 2014 and other interactions with a coworker named Christine Bastin.

At the party a picture was taken of a group of employees.  Cat was standing behind the female coworker.  Christine reported that he grabbed and fondled her left buttock.  Cat testified that she was upset after the photo was taken and said to him, “Really, Cat, really?”  Immediately after the photo was taken Christine was crying and upset.  She reported to two coworkers what had happened and this information was shared with her supervisor who spoke to Christine personally.

After the party there was an investigation and several other employees gave statements about what they judged to be Cat’s inappropriate conduct.  One male coworker noted that he saw Cat’s hand on Christine’s waist while the picture was being taken and thought that was inappropriate.  Another female coworker reported that some months earlier Cat had brushed up against her, had come up behind her at one point, and had licked her ear.

The troubling part of this case was in the documentation regarding the second specification.  Christine had relayed a variety of complaints about Cat to her supervisor before the party.  She reported that he would look her up and down and make kissy faces to her; she also told her supervisor that Cat had said that “she needed to get laid” and that she needed to “find a sugar daddy.”  When she reported these things to her supervisor, her supervisor said “it was just Cat being Cat.”  Christine’s supervisor did offer to speak with Cat about his behavior and also explained that Christine could file a formal complaint, basically putting the onus on Christine if she wanted the supervisor to do something.  Christine said that she did not push the matter because she was probationary and was afraid of losing her job.

The supervisor’s reaction here is much too common.  The supervisor had a duty to act to inform Cat that his behavior was inappropriate.  From the other specifications in the action, it appears that there was ample evidence that his behavior was out of line not just with Christine, so the supervisor could have had the discussion without mentioning what she said.  Just because an employee doesn’t want to be identified doesn’t relieve the supervisor of responsibility for taking action to correct the misconduct.  Once you know about it, it’s on management to deal with it.

On another note, the agency’s removal included several specifications about old incidents and other complaints that were not substantiated.  There’s a lesson in this case about what should have been included as specifications and what should have been left out.  To wit, the judge found six of the eight specifications not sustained, upholding only those that related to the incidents discussed above.  They had two good specifications with good evidence and recent misconduct.  They muddied the waters with six that were weak –one didn’t even have the name of the person complaining about Cat.  Needless to say, with that many specifications not sustained, the removal was mitigated to a 90-day suspension.

It wasn’t just the failure of six of the eight specifications.  The judge’s decision points up that the supervisor’s failure to act had consequences down the road.  I don’t think I can say it any better:

“While the appellant’s conduct toward Ms. Bastin at the Christmas party was troubling and warranted disciplinary action, there are several mitigating factors which must be considered. First in my mind is the extent to which the agency’s failure to adequately address or correct the appellant’s pattern of behavior toward Ms. Bastin during the several months before this incident contributed to his behavior at the Christmas party. It is unfortunately the case that despite the appellant creating an uncomfortable and unwelcome environment toward Bastin for several months, no one within the agency had told him that his conduct was becoming a serious problem and may lead to discipline if it continues. This vacuum of leadership was made worse by the agency’s culture where workplace hug greetings among co-workers were an expected daily ritual and sexual banter was commonplace among co-workers. In my view, the agency’s permissive, hugging culture, along with management’s apathy toward “Cat being Cat” in the face of Ms. Bastin’s complaints about him sent the appellant exactly the wrong message about what sort of conduct he could likely get away with in the future. While such agency missteps in no way excuse the appellant’s behavior, especially at the Christmas party, such factors did send a confusing message to the appellant about acceptable conduct in the workplace and the impact of what he was doing toward Ms. Bastin.” (Williams v. Department of the Navy, AT-0752-15-0550-I-1 (2016)

Lesson for Management

If you are a manager or supervisor, you have some things to think about while you are making brownies for the party, wrapping the gift exchange package, or putting on your holiday finery.  If you see something happening at a holiday get together that isn’t appropriate, you need to step in to stop it.  You don’t need to be a jerk about it, but you do need to make clear that it is not acceptable and may not continue.  It won’t mean that an EEO complaint can’t be filed on the matter, but it will help reduce the agency’s liability in the case.  That’s the lesson from Margorie L.

If you haven’t dealt with issues like those reported in the Williams case, it’s not too late.  Management needs to be able to show under Douglas that the employee knew or should have known that what he was doing was not acceptable.  The Navy fell short there because they knew about the behavior and never told him it was not acceptable.  In other words, when you don’t enforce the rule, the rule doesn’t mean anything.

If you work in an environment where inappropriate conduct has taken place previously, just remember that when people are partying, potentially with alcohol involved, the likelihood of it happening again is going to go up.  So, get the word out to the group, or to individuals if there are just a few you worry about, that this year’s holiday party is going to be different.   Haga@FELTG.com

[Editor’s Note: Thanks to Barbara for bringing Williams to our attention. To get the facts straight, Williams:

  1. Grabbed a woman’s butt, and
  2. Licked another woman’s ear.

Yet the agency could not fire him because it had never told him that such behavior was inappropriate? Also, there was a “hugging culture” within the office? Each of these acts is a battery, the butt-grabbing being additionally a criminal sexual assault here in the great state of California.

No wonder people get elected who think that civil servants cannot be held accountable. Yes, management could have done more, but the greater fault in this case lies with the US Merit Systems Protection Board.]

Arbitration – “It’s Just Not Fair”

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By Barbara Haga

About a year ago I wrote about a credit card misuse case where the disciplinary action was taken to arbitration.  The arbitrator did not find that a GS-13 (with prior discipline about card use) taking ATM advances on the card when not on travel was personal use of the card and did not sustain the removal.

I thought that was a blatant example of an arbitrator applying a different standard than the MSPB on a particular kind of charge, but that was nothing compared to the performance case that I am writing about today.  This case is American Federation of Government Employees, Local 1923 and U.S. Department of Veterans Affairs (2016).  The decision came out June 10.  I hope the DVA filed an exception.

Background

The grievant was a Vocational Rehabilitation Counselor, GS-12.  She had been in her position for over ten years and had previously passed the Skills Certification Test for her position.  She worked in an “out-based” location away from where her supervisor was located.

There is a current announcement out for a job like this on USAJOBS.  It’s an opening at GS-101-9 target GS-12. The duties described include the following: 1) Provides and coordinates a wide range of rehabilitation counseling and case management services to veterans with disabilities and other eligible individuals, 2) Performs initial evaluations, makes eligibility determinations, does rehabilitation planning and problem solving, and conducts counseling, 3) Coordinates and implements rehabilitation services, completes case documentation, employment services, and administration and interpretation of vocational testing, 4) Makes recommendations and referrals to other sources, which may assist the veteran.  Clearly these are functions that veterans are in desperate need of at this time (the Bureau of Labor Statistics shows an unemployment rate for veterans this summer of 4.9%).

The qualifications requirement for the GS-9 is a master’s in rehabilitation counseling.  It appears from the current announcement that specialized experience can be gained in other Federal, state, and local rehabilitation work, but that is only substitutable for an internship requirement and doesn’t meet basic qualifications. The grievant arrived as a GS-9 employee in 2001 and was promoted to GS-12 in 2002 according to testimony of the deciding official.  The grievant admitted in her testimony that there were issues with her meeting the required standards in FY 13 and FY 12.

The PIP

The supervisor testified in the hearing that in September 2014 she found that the employee was failing three critical elements:  Quality of Work, Timeliness, and Successful Closure or Production. These elements are measured by national, number-driven standards. The standards included numbers like 88% on Fiscal Accuracy, 96% on Entitlement Determination, 83% on Accuracy of Evaluation, Planning, and Rehabilitation, etc.  I don’t know about my readers, but 83% and 88% seem generous to me – 12-17% improper payments would be okay????

The grievant provided testimony about whether the numbers were applied equitably – that sometimes there were delays in receiving course certification from a school a veteran was attending, and there were issues about computer down time.  The account of the management testimony on these points recounted in the decision is not what I would have hoped to see – that these are national averages that take into account certain problems in system availability, leave time, and problems in obtaining records, but that hundreds of counselors are able to meet these standards across the country every year.  Testimony about how they were developed, how long they had been used, etc., would have been helpful.

The PIP notice was prepared with union participation.  There was an oral meeting where failings were discussed and after the meeting, the employee and the union were asked for input.  There were two extensions to the PIP to provide time for training where the employee (a GS-12 full performance level employee) was taking training in the Vocational Rehabilitation Counselor Fundamentals. Another extension was granted at the employee’s request.  During the PIP there were bi-weekly meetings by telephone and in person.  The arbitrator wrote that “… copies of the meetings were documented and provided to her.”  I am also assuming that there were notes from each of the meetings that were given to the employee.

During the PIP the employee reached Fully Successful on two elements but remained at unacceptable on Quality of Work.  If I am following the decision correctly it seems that the PIP was issued in September 2014 and ended in March 2015, so the grievant had a six-month opportunity period.  Because she was at Unacceptable in one of her elements at the end of the PIP, she was removed from her position.

The Arbitrator’s Conclusion

The arbitrator overturned the removal.  When I read this decision this summer I nearly fainted.  Here is the highlight from Findings and Discussion: “The testimony is clear that the grievant seriously endeavored to achieve acceptable work performance and was unsuccessful in Critical Element 3 of her Performance Appraisal.  The determination of successful performance of Critical Element 3 is undisputed.  It is unclear whether the performance level was of her own making or due to a combination of attributing [sic?] factors.”

The arbitrator credited the employee’s account about delays in processing actions because of computer issues.  Management did not refute that to the arbitrator’s satisfaction.  But that was just one aspect of the unacceptable performance.   The decision goes on:

The failure of the grievant to meet standard in relation to the Quality of Work Critical Element presents similar concerns of fairness.  Particularly noteworthy is the grievant’s outcry for supervisory assistance in constructing an acceptable report.  Here again, the evidence is clear that supervision did exactly what was called for by Article 27, Section 10 in relation to identifying specific performance-related problems and deficiencies … TMS training, extending the period of the PIP and others.  Missing however is the response to her persistent request of the grievant for guidance and discussion on how to present an acceptable write-up to her supervisor.

The employee wanted samples.  Apparently, the employee asked the supervisor and other employees for samples of a properly completed report.  The supervisor told her she should be able to create that herself.  In other words, it appears she couldn’t create an acceptable report on her own and needed a go-by.

The arbitration decision addressed Douglas Factors in discussing that the employee was not responsible for delays caused by system problems. “The same kind of delay has contributed here to the grievant’s separation as though she was at fault.  An employee without fault has been penalized.  Thus, the extent or degree of any impact on Douglas Factor consideration is improper and cannot be found that the agency acted within the meaning of fairness an objectivity of Article 27.…  (It does appear that a manager testified about Douglas factors, but the arbitrator should know better.) [Editor’s Note: Douglas Factors have NO PLACE in a 432 unacceptable performance removal because the penalty cannot be mitigated. This is the second DVA case in a matter of weeks that we’ve run across in which Douglas Factors were improperly considered in an Unacceptable Performance removal under 5 CFR 432, see Walls v. DVA, DE-0752-13-0278-I-1 (September 7, 2016)(NP)(infra). Somebody needs to come to our classes, learn our business, and get the word out.]

The arbitrator ended with this:

“Despite the lack of any procedural errors in relation to the grievance [sic] performance appraisal and PIP, the grievance [sic] removal remains contractually deficient.  The Master Agreement recognizes and affords employees the right to a fair and equitable performance appraisal to the maximum extent possible.  Refusing reasonable requests of an employee assiduously endeavoring to maintain employment is hardly fair or equitable…  In the effort to be procedurally or mechanically correct in separating the grievant, management apparently lost sight of the underlying substantive purpose of a performance appraisal and the role of supervision in relation to PIP’s.”

American Federation of Government Employees, Local 1923 and U.S. Department of Veterans Affairs, 116 LRP 25915 (June 10, 2016). If I were keeping a list of names to strike…. Haga@FELTG.com

Making EAP Referrals

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By Barbara Haga

This month we are exploring what a referral to an Employee Assistance Program (EAP) looks like.

Referral in Daily Practice

Years ago OPM had a film that I often used in supervisory training on EAP.  In fact, I used it so many times I can practically quote the script.  Unfortunately, it was quite dated.  The manager in the video was wearing a plaid sports coat right out of the ’70s and, at one point during the employee’s downward spiral, you saw a scene where the manager was in his office bemoaning his fate while emptying his pipe into an ash tray.  Obviously an update was needed and OPM released one, but I never thought that the updated one did as good a job of showing the actual referral.

I will never forget the employee in the original version; her name was June, and she seemed to be having some family problems that were coming with her to work.  It appeared that she was a Management or Program Analyst or something similar.  Her performance had deteriorated.  She was missing deadlines and messing up on details, and when she was asked about a work issue by a senior manager she chewed him out!  The immediate supervisor was Charlie. In his initial meetings with her, June was very good at deflecting his focus on her performance issues. For example, when he talked to her about errors in a report where the sums didn’t tally properly, she came back at him with “I found those errors and I have corrected them and I will have the report on your desk by the end of the day.”  She even patted him on the shoulder and said, “Everything’s going to be okay, Charlie.”  After a few exchanges like that, the supervisor was at his wits’ end, and June’s mistakes and omissions and poor behavior were beginning to reflect on him.

Like most training films, the manager tries it on his own without “guidance” and doesn’t fare very well, and then he gets help in planning out the referral and delivers the message the way he should have. The EAP counselor helps him prepare for the meeting with June.  She tells him to focus on the deadlines and mistakes and to stop focusing on what he thought was going on outside of work.  That’s excellent advice even by today’s standards.

Written Referral

The portion of the film when the manager advised June that she was being referred to EAP was done very, very well, and it became the model I followed when I advised managers how to do this.  In the film, the manager put together a letter describing June’s failing performance giving specific examples of the errors and omissions.  The film did not depict it as a PIP notice but was instead a warning that her performance was below standard.

I still recommend today that managers do written referrals documenting what the issues are.  This accomplishes several things.  First, it makes it real for the manager; he or she has to write down the details of what was wrong and why it was wrong.  Secondly, it makes it real for the employee.  Being chastised by someone about mistakes verbally isn’t pleasant, but seeing a formal letter that recounts these things is quite a different experience for most people.  Finally, it can help the EAP counselor.  Sometimes employees agree to go but then do the “I have no idea why I am here” routine with the counselor.  The letter helps the counselor ask about specifics.  In June’s case it might have been, “You had a conversation with Mr. Smith last Friday about a problem with a budget report.  How did that conversation start?  What did Mr. Smith ask you?”  By asking these kinds of questions the EAP counselor may get the employee to open up about what led up to the outburst that was reported to her supervisor. [Editor’s Note: As we teach in our UnCivil Servant seminar for managers, contemporaneous notes like these are an excellent defense should the employee challenge the supervisor in a grievance or complaint.]

The letter delivered in the film included a referral to the EAP counselor that Charlie had worked with.  When June came in to his office for the meeting, attitude in tow of course, he handed her a copy of the letter.   He reviewed the letter, focusing on the performance deficiencies.  He told her that he was referring her to the EAP.  June became agitated and said, “This is an adverse action letter.  I’ll file a grievance.”  The manager responded that it wasn’t an adverse action; it was simply a referral to the program.  He went on to say that things had to change and that her performance problems could no longer be tolerated.  When she pushed back he said something like, “June, you have excuses for everything, but something has to be done about your performance.”

June finally started to relent a bit and said, “Things at home have been tough for me lately, but it’s not something I can’t handle on my own.”  Charlie wraps up the meeting by repeating that her performance has to change.  He goes on to say, “The choice is up to you whether you go to EAP or not.  But, whether you go or not will be very important to me.”  At the end of the film we didn’t know whether she went, but Charlie can show that he took reasonable steps to put her on notice about her performance and offered her a chance to take advantage of the EAP.

Preparing the Manager in Today’s World

The world Charlie lived in is likely very different than what most agencies experience today.  An actual on-site skilled EAP counselor is a luxury many agencies don’t have.  Instead they rely on Federal Occupational Health (FOH) or some other long distance service to take care of their counseling services.  While that may be the most efficient answer, especially for agencies with widely dispersed populations, it doesn’t take care of the problem of preparing the manager.  Sometimes it falls on the HR practitioners to help the managers get ready for conversations with employees on tough topics like what was described above.

Putting referral information in the letter is a good start, but even the most brilliantly written referral letter, warning notice, or proposed performance or disciplinary action will not achieve its goals if it is delivered poorly and the meeting goes off track. That means not just e-mailing letters but going over the content with the manager and anticipating what kinds of things could come up and giving the manager an opportunity to think through the possibilities and how he or she will respond.

We generally don’t see managers being hired because they have experience with this sort of thing.  They have experience in other areas like budget, forestry, or rocket science.  We expect them to learn these kinds of techniques on the job.  I wish I could tell you that there is a good OPM film or course available to help you help them.  I looked through the HR University website but I didn’t see a course that seemed to cover this type of topic.  But, it is something worth investigating or developing materials for your own use.  It will be worth the investment. Haga@FELTG.com