The Dreaded Yellow Donut

By William Wiley, September 5, 2017

Here at FELTG from the very beginning of our existence, we’ve taught that the best approach to discipline is to focus on the minimum steps that have to be done and to avoid doing things that have no legal value. The obvious reason we make this recommendation is that the more unnecessary things you do with a bad employee, the longer it will take you to be able to use the ultimate accountability tool: removal from federal service.

The other reason we make this recommendation is a bit more insidious, and a product of our protective civil service system. In reality, just about any personnel action you take with an employee can be challenged through one or more of the redress systems available to federal employees who feel that they have been mistreated. If you do something to an employee and he thinks it is because of his race/sex/age/etc., he can initiate an EEOC complaint against you, involving a big investigation and perhaps even an administrative hearing at which you’ll have to defend your action before a judge. If you do something to an employee and she thinks it is because she’s a whistleblower, gird your loins for an investigation by those tough investigators over at the US Office of Special Counsel. If you do something to an employee and he thinks it’s because he’s a union official, here comes the crew over at the Federal Labor Relations Authority, prosecuting you for committing an unfair labor practice.

If you decide to take formal steps to hold an employee accountable for misconduct or performance, you probably are going to have to defend yourself before one or more oversight agencies, no matter what. For your own sanity and the well-being of your children, you should avoid doing any more to an employee than necessary, because the minimum steps will keep you busy enough, and you don’t want to have to defend yourself any more than you have to.

When we make this point in our seminars, the graphic we use is a three-part bulls-eye target containing all the options a supervisor has when confronted with a bad employee. The outer blue ring symbolizes options we have to admit are options, but they are illegal: DON’T DO THEM. For example, you could spank the employee who doesn’t obey your orders. DON’T SPANK YOUR EMPLOYEES (but it is an option).

The middle of the target is the red bulls-eye. This is where you want to put your efforts: Reprimands, Suspension, and Removals. Those are the primary tools of discipline. We teach that they should be the exclusive tools that a supervisor uses.

That leaves us with options in the middle band, the circle of options around the red bulls-eye middle and inside of the purple illegal options area. These options are legal, but they have no legal value. You do not need to do them to hold employees accountable, and they help you in no way as far as defending yourself should you ever decide to fire the employee. In our seminars, this collection of options has come to be known as the dreaded “Yellow Donut.”

So what are some actions out there in the Yellow Donut that are to be avoided? Well, they are actions we see all the time, often memorialized in agency disciplinary policies: e.g., Admonishments, Letters of Caution, Letters of Warning, Letters of Counseling, and Letters of Expectation. When a supervisor gives one of these documents to a problem employee, it feels as if the supervisor is doing something worthwhile, but she really isn’t. These items do not meet the case law definition of “discipline” in most cases, and therefore cannot be used for the purpose of progressive discipline. Sometimes supervisors tell us that they have been advised by Human Resources or legal staff that these actions are a necessary precursor to issuing something actually worthwhile, like a Reprimand or Suspension. Well, unless your union contract says otherwise, they are not.

Not only are they a waste of time, they also give the employee something to challenge. Last month, I was involved in an OSC investigation in which one of the two personnel actions being challenged as whistleblower reprisal was a Letter of Admonishment. The settlement figure in that case – the amount the agency agreed to pay the employee to have it all go away –  approached a half-million dollars.

In part, for a freaking Yellow Donut.

Look. If you want to stop by Dunkin’ every couple of hours for a delicious glazed yummy, that’s between you and your waistline. But if you want to do this business like a pro, holding employees accountable expediently and fairly, then drop those Yellow Donuts from your disciplinary diet. As Deb always says, they aren’t anything but empty calories. Wiley@FELTG.com