I recently wrote a letter to OPM’s Director, Katherine Archuleta, and I made her wager for dinner at a restaurant of her choice, if she won. My wager was to have her personnel doing accountability reviews determine whether newly appointed supervisors and managers were receiving the required 80 hours of supervisory training within the first two years of promotion to these positions. I already have my restaurant picked out.
The Federal Workforce Flexibility Act of 2004 (P.L. 108-411) requires agencies to provide specific training to develop supervisors and managers as part of a comprehensive succession management strategy. To implement the requirements of this Act, OPM published final regulations on December 10, 2009.
The Act requires agencies to provide training to supervisors and managers on actions, options and strategies in:
- Relating to employees with unacceptable performance;
- Mentoring employees;
- Improving employee performance and productivity; and
- Conducting employee performance appraisals
The revised 5 CFR 412 on Supervisory, Managerial, and Executive Development requires new supervisors to receive:
- Initial supervisory training within one year of the new supervisor’s appointment;
- Retraining in all areas at least once every three years;
- Training on mentoring employees;
- Training on improving employee performance and productivity; and
- Training on how to conduct performance appraisals
The regulations mention specific topics including mentoring employees and performance management, but it is recommended to go beyond the requirements outlined in 5 CFR 412 when developing supervisory and managerial programs.
Here are some additional topics agencies typically include in supervisory and managerial programs:
- Recruitment and hiring
- Time and attendance (FLSA and FMLA)
- Prohibited personnel practices
- Diversity and inclusion
- Reasonable accommodation
- Labor and employee relations
- Financial management
- Employee assistance programs
When I was with the Department of Labor, I often heard from OSHA supervisors that the union stewards received 40 hours of training each year, and they received nothing relative to the above referenced topics.
It is little wonder then why supervisors get into trouble or believe that upper management does not have their back when they have a troubled (performance or conduct) among their direct reports. The latter breeds hopelessness, frustration and discontentment.
The Merit Systems Protection Board (MSPB) published its 2013 annual report in May 2014. In this report, a chart highlights that MSPB received 2,703 adverse action cases to decide. Of that number, there were only 141 performance based cases.
I do not know how you feel, but with over two million federal employees, there were only 141 performance based adverse actions. That number suggests to me that the process envisioned by the 1978 Civil Service Reform Act is broken, and managers are unwilling to tackle unsatisfactory performance.
This brings me back to my original premise that managers are not getting the necessary training or the backing of their senior management to take on the problem employee. I have never subscribed to the myth that it is impossible to remove the problem employee. Case law does not support that myth either, but the roadmap to get sustained before third parties is indeed arduous, complex, requiring detailed documentation.
Beyond adverse actions there are so many other areas vexing the untrained manager.
The late Steve Opperman wrote a series of articles for FedSmith shortly before he died entitled “Raiders of the Lost Art.”
In the first article in his series, he noted that federal agencies paid out over $35 million in back pay claims due to violations of the Fair Labor Standards Act (FLSA).
Even though federal agencies only came under the FLSA requirements in 1974, FLSA noncompliance is still a cash cow for union grievances because of a lack of supervisory understanding, and the pressures of doing more with less, which leads to creative work-arounds that do not conform to law and regulation.
In this modern era with smartphones, telework, and WIFI, compliance with duty hours and FLSA becomes immensely difficult to monitor. Then throw in a supervisor who sends a direct report a message after hours that he/she needs the employee’s take on a particular topic. The message is marked urgent. How is this time treated?
Now, we throw in the Family and Medical Leave Act, the Americans with Disabilities Act and its amendment, leave for religious observance, prohibited personnel practice violations, etc. One can readily see why there is a demonstrative need for supervisory development.
There are two very important lessons that can be learned without going to court. The first lesson is to take responsibility for training your leaders. The second lesson is to follow your own rules and regulations. There is not an arbitrator or administrative law judge that is going to sustain a management action when management failed to play by its own rulebook. It takes an effort to do it right, but when this effort is applied, the sustention rate is much higher.