Yeah, I know. It’s not at all funny. You’ve managed to run afoul of your Agency’s management and all the signs indicate they’re ready to drop the axe. Lighten up, there may be light at the end of tunnel. If you play it right, there’s a good chance you can not only avoid the axe but come out of it with a clean record. It all depends on you and how clearly you can think; how well you can get a handle on your feelings; and whether or not you get caught up in the “I’m entitled to justice” mystique.
There’s a number you need to internalize: 3%. This is the approximate percent of federal employees who actually win a job back after getting fired using the appeals and grievance systems available. These are the folks that get “justice”. These are the folks who get their attorney fees paid, get back pay and are returned to their former jobs. It’s hard to get a figure because of the variety of systems out there but based on what I could find 3% is probably a little on the high end but it’ll do for the purposes of this article. So what if you’re in the other 97%? You will probably end up either forking over attorney fees, spending lots of time and effort getting nowhere and/or getting caught up in a fair amount of bad karma.
As an employee relations advisor to management, I’ve spent a lot of time on the other side of this process and have seen a goodly number of cases. I have even represented management in cases at arbitration, before the Equal Employment Opportunity Commission and the Merit System Protection Board. One of the things I learned stands out. Managers hate to take disciplinary action and hate even more the hassle they will undergo if they head down the road to fire somebody so when they decide to go forward, they almost always (97% of the time) have cause and the evidence to back it up.
As said earlier, whether you can come out of a bad situation depends on what you allegedly did, a number of variable factors and on the kind of position you hold. Let’s start with that.
First, it’s important to understand that, as a probationer, you have very few rights. Basically, you can claim you’ve been discriminated against and put yourself into what is the longest and hardest to win of appeals processes. That’s my experience anyway. You also have to prove your claim against the Agency. So how do you turn disaster into more acceptable alternative?
Talk to your supervisor. If you’ve got the feeling the organization wants a divorce, ask your boss if the Agency is considering terminating you during probation. If the answer is either yes or a very strong maybe, consider resigning before the actual event. If you can find a person who works in your Human Resources Office and advises managers about situations like yours, go see them and ask how this matter can be made better for everyone involved. Depending on the Agency, you may be able to work out some administrative leave (paid non work time) and a clean record in exchange for a resignation and an agreement on your part not to file any claims. See the section below on getting advice.
Status Employees without Early Retirement Eligibility
You are past probation but under the age of 45 and have nowhere near 25 years of service. You are also fairly certain you’re in the removal crosshairs. Maybe you have recent discipline for leave problems and a low or non-existent sick leave balance with a likelihood that these problems will continue. Maybe you and your boss have a history that includes prior discipline and you know you can’t tolerate the jerk and are likely to say so. Whatever your situation, if you can hear management sharpening the axe, it’s time to have a pragmatic discussion with someone in authority about how both of you can move on with as little pain and suffering as possible.
In earlier articles, I’ve addressed settlement agreements. Find a smart representative (see later remarks) and start working a deal. What’s on the table? Administrative leave to look for a job, keeping your office phone number for a period of time, an SF-50 (Form that goes in your permanent record) that says what you want within limits. (E.g., resigned for personal reasons), a letter that states your dates of employment, lists any awards or training and serves as your way of showing the employment period.
Status Employees with Early Retirement Eligibility
Employees fired for cause cannot retire until they are 62 years old unless they are back in service. However, an eligible employee removed for unsatisfactory performance may apply for “Discontinued Service Retirement” under Office of Personnel Management’s rules. OPM will not approve such a retirement unless the person has actually been removed from service and has the documentation to prove it. If you have performance problems in addition to other issues, the Agency may consider this avenue if you make it relatively trouble-free for them to do so.
When It May Be Smart Just to Get Out
Your bargaining power goes down in direct proportion with the Agency’s ability to prove misconduct and with any particularly bad conduct. If you’re under arrest, in jail and know you did some, most or all of the bad behavior you’re accused of, it’s time to resign. Your bargaining power lies in making it easier for management to make a deal with you than going through the tedious paperwork involved. Remember the laptop someone took that had all the Agency data on it. Don’t expect a deal if you’re the one playing video games on it now and get caught.
If you’re in a bargaining unit, you are entitled to union representation. The quality of that representation varies widely. If you don’t pay dues, no matter what the law says, you get the representation the local union thinks “free riders” deserve. If you’re represented by a union, you cannot have your own lawyer represent you unless the union designates them as its representative, an extremely rare event.
You can get a lawyer of your own after you receive a “proposed removal notice” so you can wait until then or use the union. If you’re going to utilize the union, remember you may get your arm twisted (figuratively, we hope) to sign up for dues. Once you get past that hurdle, make sure the union representative involved knows something about discipline, adverse actions (technical name for removal) and particularly deal making. About half of union stewards I’ve met do the job because they are disgruntled, often believing themselves the victim of past personal mistreatment at the hands of supervision or management. Try to find one who doesn’t have an axe to grind. Remember it’s an axe you’re trying to avoid.
Lawyers may also have problems to overcome. I’ve seen some so caught up in negotiation theory, they couldn’t put a deal on the table or recognize when it was in the employee’s interest to sign it right now. Make sure your lawyer has Federal employee experience. It may cost you but you’ll likely get a better deal.
The Bottom Line
All of the above involve a resignation. You can try to get yourself reassigned to another manager or office but it’s a tough sell to get another manager to take on an employee with “issues”. Once you come to the decision that out is inevitable, start job searching. If you get an offer, you can move on to everyone’s satisfaction.
Life is certainly not a beach everyday, reality does bite and yes, Gracie, Federal employees do get canned. If you want to come out of a bad experience as little damaged as possible, get it behind your mentally before you start the kind of effort described above. Find a good, experienced advisor who can keep your best interests in mind. Communicate with the Agency. Human Resource Specialists are frequently interested in discipline alternatives as they are the ones who must listen to management gripe about an employee and draft all the paperwork. Go up the chain if your immediate boss does a Stonewall Jackson imitation. But most important of all, get yourself well under control with an eye on the future, not the past, if you find yourself in serious difficulty with your Agency.
The views expressed in this article are mine and mine alone.