Dealing With Our Worst Employees: Four Simple Suggestions

Almost everyone outside of labor union activists wants to make removing government’s worst employees easier or less complicated. Such was the intent of the last major civil service reform – more than 30 years ago. If innumerable employee satisfaction surveys are to be taken seriously, it failed.

As OPM Commissioner Berry and several elected Republicans race to initiate the next big set of reforms that will likely alter human resource management in the Executive Branch; it may be wise to look at a few of the many reasons why President Carter’s “Civil Service Reform Act” (CSRA) failed to in its promise to rid government of sloth and ineptitude.

Before addressing this topic, it is only fair to note that Federal agencies need improved systems for rewarding the many wonderful employees who work for Uncle Sam. Too often, simple acknowledgments like “Thank you,” “You do beautiful work,” and “You take on more than your share,” and “I appreciate your willingness to do this without complaint” seem to stick in management’s collective throat. It’s as if appreciative gestures might swell our best employees’ heads or weaken leadership. Nothing could be further from the truth.

Carrots and sticks

With that in mind, the larger problem appears to be Federal management’s unwillingness to take on the worst among us. As most of our parents knew, positive motivation cannot exist in a vacuum. There must also be consequences for those who break the rules and for those who cannot achieve passing grades. If a school were to give 99 “A’s” for every “D” or “F,” a person might wonder if the teachers and administration are doing their jobs.

For most of us, employment represents a contract:  I’ll give you hours of work (labor) if you give me a competitive wage (earnings) and benefits. If I become disabled or retire after decades, I should be entitled to a pension. If I cannot keep up with or perform the work you’re paying me to do, or I’m behaving like a spoiled child while being paid as a productive adult, my employer’s end of the bargain is no longer being met and I should expect modification or termination of the deal.

Four causative factors

Productive Feds wait years to detect any push back against their abusive or clueless coworkers and bosses. Sensing that little confrontation or change is likely, many fine employees leave their agencies, hoping that such tolerance (of poor work habits or of outright abuse) will not be a feature of their next job.

I see many causative factors that contribute to this chronic failing. In some of my seminars, groups are asked why these employees are not dealt with effectively. They freely toss out dozens of reasons. Among these, four stick out. They are:

  • A lack of knowledge/understanding of the human resources (HR) processes that must be used;
  • Middle managers and HR specialists whose support is problematic;
  • Attorneys whose perceptions of risk conflict with the interests of managers;
  • A decided lack of confrontation skills… and rewards for having them.

Ignorance abounds

I have been teaching a seminar currently titled Dealing with Performance and Conduct Issues to Federal supervisors and managers in the field for decades. Most management veterans have not been trained in such matters beyond a few hours in a class about supervisory fundamentals and brief mentions in seminars devoted to teamwork and motivation. In many cases, they have “inherited” people whose incompetence has been overlooked for years. Others are trying to lead people who lie, cheat, and/or steal… and then complain that their workplace is “hostile” when confronted. The frustration of these front-line leaders is palpable.

There being no clear curriculum for supervisory knowledge, skills or competencies, a significant percentage have never heard of “Douglas Factors,” “due process,” or the “tables of penalties.” No one took the time to inform them that terminating probationers is essentially the same as not selecting an applicant for employment. These otherwise intelligent women and men have been led to believe that if two people are caught breaking the same rule, they must receive the same punishment… period. When I teach them simple-but-essential facts regarding Federal employment (i.e. you can assign work that’s not mentioned in the employee’s position description) they are amazed and/or doubtful.

Why don’t agencies have rigorous training requirements in these areas? Why am I answering questions that have lingering for years?

Explaining the options available to Federal managers who must deal with deadbeats and demons should be basic curriculum in any agency interested in cutting costs.

I estimate that even a pricey two-day seminar (many are offered by attorneys who are experienced in Federal case law) on how to deal with an agency’s worst employees pays for itself in a matter of months!

It seems as if Chief Human Capital Officers (CHCOs) would have this near the top of their priorities. Is there a meaning to “human capital” that I’m missing?

Gum in the works

Another reason we carry so much dead wood is a significant population of middle managers who are afraid to make the tough call. This subset of 2nd to 4th –level managers was selected based on loyalty and willingness to accept decisions from above rather than strong leadership or risk-taking skills.

Their fear of EEO complaints or grievances that will eventually require the attention of their superiors is legend in many corners of government. After all, in the world of disciplinary actions and Performance Improvement Plans (PIPs), litigation is inevitable. The most innocuous comment or gesture could lead to a hearing before an arbitrator or EEOC Administrative Judge. Eager to please, loath to offend, and averse to conflict, such middle managers find ways of dissuading front-line supervisors from acting at all… while coworkers wonder why nothing’s being done.

Occasionally, I find that my HR colleagues are no better. Labor/Employee Relations work requires competencies that significantly differ from other operations. Thick skins and stomach linings are essential to successful performance. Additionally, employee/labor relations specialists must have an interest in the nuances of court, board, commission, and Authority decisions and changing case law and bold enough to advise attorneys (see below) who lack such a focused background in Federal employment law. Such jobs are not for the bookish, bureaucratic, or faint of heart… but Human Resources/Capital Directors seem loath to acknowledge this.

Thus the Peter Principle renders the task of taking on incompetent employees and those who behave like adolescents feel like pushing rope uphill. Undottted i’s and uncrossed t’s are viewed as fatal flaws rather than typos, and the powers of Darth Vader are attributed to bellicose representatives.

I know there are managers and HR folks out there who have a taste for red meat. Many are predictably unsympathetic to employees’ legitimate concerns and needs. I wish to report, however, they appear to be vastly outnumbered by others who, when the going gets tough, survive on a diet of milk and toast.

…and then come the lawyers

After the Civil Service Reform Act of 1978 (CSRA) was implemented, Feds were introduced to the newly constituted alphabet agencies: OPM, MSPB, EEOC and FLRA. The business of labor and employee relations underwent dramatic changes. In many cases, procedures became labyrinthine and petty. (Must we prove that our appraisal system was approved by OPM to fire an unsatisfactory performer? Can’t we rid ourselves of a nincompoop without being versed in the “rules of civil procedure?”)

From the early 1980s to date, administrative hearings resemble district court trials. Eventually and inevitably, agencies decided to have attorneys take more ownership in the disciplinary and performance-based actions… at a cost. The lay people whom the lawyers replaced (my mentors and colleagues) often had an affinity for risk, competitiveness, and/or experimentation. We were drawn to this work because it is unpredictable and challenging. But administrative judges who understood legalese better than leadership began to confound some of us.

Over time, techies replaced toughies. An 80% chance of winning became a 20% chance of losing. While attorneys may be trained to litigate, they more commonly settle. Those who choose a career in an agency office of counsel are generally not the kind of attorneys you will see in television series like Law & Order or Boston Legal. They often perceive their role as helping management avoid the risks associated with hearings, appeals and litigation.

Thirty years since the CSRA was fully implemented, agencies have learned that they are very likely to prevail in MSPB and EEOC hearings. Many legal representatives, however, press management to settle winning cases – not understanding the demoralizing effect this may have on leadership. Resignation is not the same as removal to a supervisor who has risked the time and reputation to do the work required. Objectively, the $5,000 cash settlement is cheap compared to the costs of the hearing. On the front lines, however, it feels like attorneys are “selling out” to the inevitable loser.

Consequently, it is time that agency attorneys consider the costs of settling a case in which management is likely to prevail along with the benefits. Front-line managers should have a voice, if not a strong position, in making such decisions. It’s all about “human capital”.

Who will deliver the news?

In this not-so-new century, e-mail has replaced handwriting, texting has replaced conversations, and confrontation skills are at an all-time low. This is not to say no one is confrontational. Some of us have seen road rage up-close. But honest eyeball-to-eyeball conversations over matters that may be misunderstood or offensive are becoming rarer by the day.

Ridding the Executive Branch of its worst employees demands such skills. Absent confrontation (investigative interviews, unvarnished performance reviews, readings of the riot act, etc.) we cannot meet the burdens of proof required in discipline and performance cases. Someone needs to look an employee in the eyes and say, “Your performance is unacceptable” or “Your behavior has become a major distraction” or “I don’t believe you’re really sick when you say you are.”

As a volunteer mediator for Federal agencies in the Seattle area, I often find my work involves getting people to stop dancing around serious issues and say what they really mean. I cannot count the number of times that a manager begins to confront with the words, “I may have misunderstood you…” or “You may not see it this way, but…” and so forth. It’s like a cop beginning the lecture with, “You may come to full stop on most occasions…”

There is a clear need to assist supervisors in such meetings rather than leaving them on their own to sink or swim. Nothing should prevent that front-line manager (whose skill set is better equipped for engineering studies, welding, or forestry) from having competent assistance. If a significant likelihood that the assistance of specialists and/or attorneys may be needed down the road, why not have them in the room at the beginning of the process? Moreover, nothing in law entitles the employee to “up the ante” in such meetings by having their own representative in such meetings, as long as they are not investigative in nature.

Confrontation is not a competency that can be easily taught. Moreover, “Supervisors should know how to…” is an excuse that has worn thin absent their training. Assume they don’t, and offer a helping hand to those who are willing to actually do something. Lots of us experience butterflies in our stomachs, sweat on our brows, and/or panic attacks when staring down an employee who may become enraged or tearful. The logical move is to offer visible support. Such allies are of additional value as note-takers, thus freeing the supervisor from the additional chore of contemporaneous documentation. If I’m not mistaken, it’s a human capital issue.

Taking cost savings seriously

The ongoing cost of tolerating behavior and performance problems is a serious overhead expense in the Executive Branch. Our own employees have told us so. As the budget axe swings toward your agency, why not consider those who we won’t miss too much if they leave? It might help the morale of those beleaguered Feds in many agencies who struggle to keep things running. Moreover, it might send an alert to those who assume that they: are entitled to “mental health” days; exempt from learning new technologies; have a right to play with online dating and auctions while others work; believe the non-paid lunch hour is inadequate; etc.

A significant number of Federal elected officials would delight in turning government jobs over to private companies. Most of those reading this article know that working for a mission is a different motivation than working for day traders and hedge funds. It’s our competitive advantage. It’s time to look at what may be the Federal government’s most serious competitive disadvantage and make a few changes. It’s an area where a CHCO can save tangible human capital.

© 2016 Robbie Kunreuther. All rights reserved. This article may not be reproduced without express written consent from Robbie Kunreuther.

About the Author

Robbie Kunreuther is the Director of Government Personnel Services (GPS). GPS provides 1 to 3-day seminars to Federal agencies in four subject areas: Dealing with performance and conduct issues; Developing sensible performance appraisal criteria; Fostering cooperative labor-management relations; and Applying mediation skills in the workplace. Over the years, Robbie has trained thousands of Federal supervisors, managers, HR specialists, and union officials. For more information about him and GPS, go to trainlngfeds.com.

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