Is It Probation If No One Gets Fired?

By on December 10, 2015 in Human Resources with 30 Comments

Image of a 3D person marked for probation with target and label 'one to watch'

The recent news about the Department of Veterans Affairs needing a do-over on its downgrading of Senior Executives who were charged with misconduct is the latest chapter in an ongoing story about accountability for federal workers. The VA story highlights the difficulty the government has with getting leaders to take corrective actions based on performance or misconduct.

VA is not alone – the Federal Employee Viewpoint Survey has shown for years that federal workers do not believe their agencies do a good job of dealing with poor performance and misconduct. In the most recent survey, only 28% agreed that their agencies took steps to deal with employees who cannot or will not perform.

The common argument is that it is close to impossible to fire a federal employee, so few federal managers go to the effort to do it. While I certainly do not believe wholesale firings are the solution to government’s problems, it is clear that more has to be done to hold federal workers accountable. For most employees, that would not be a threat. In fact, it would be a welcome change. When an employee does not perform, coworkers have to pick up the slack. Failing to deal with problem employees shifts the burden from the poor performers to the good performers. Asking the good employees to do the work of the bad employees, knowing the agency is unlikely to do anything about it, is a form of employee abuse that needs to stop.

The VA example shows that agencies have trouble even when there is clearly no regulatory or legal obstacle to dealing with the problem. Another much better example is the probationary period. Federal employees serve a 1-year probationary period after promotion to a supervisory position, a new appointment or appointment to the Senior Executive Service. The probationary period is the final step in the examining and appointment process and has existed since the merit-based Civil Service was created by the Pendleton Act in 1883.

Probationary employees can be fired (if probation is based on a new appointment) or demoted (if probation is based on becoming a supervisor) with little recourse. The process is simple, does not present any paperwork burden, and does not result in lengthy appeals. There is little cause for a manager to be afraid of the repercussions of taking an action on a probationary employee.

So – how many people are removed or downgraded during probation? GAO reported in February 2015 that 58 supervisors were downgraded during probation in 2013. The percentage of employees fired during probation has historically been low. In fact, the Merit Systems Protection Board reported on the issue a decade ago. MSPB found a number of barriers to effective use of probation, including training for managers and lack of leadership support for dealing with poor performers.

Even with the lack of effective use of the probationary period, we continue to see interest in extending existing probationary periods. Should we expand something that does not appear to work? I think the answer is yes. In fact, I would go farther than the proposals to expand the existing probationary periods and add an additional requirement for probation for people who are newly promoted.

There are many problems with how the government has implemented and used probation, but that does not mean the concept of a probationary period as a final step in the examining process is a bad idea. In fact, it is was a good idea when it was first implemented by the Pendleton Act and it is an even better idea today. The hiring process has become so reliant on badly designed applicant questionnaires and falsified applications that agencies having a period of time to verify that new hires can actually do the job is critical. What we need is expanded probationary periods and far better implementation of them so they actually help weed out problem employees before they become entrenched in the Civil Service.

Expanded Probation

A single year of probation is not adequate for most jobs. It is wholly inadequate for supervisors and members of the Senior Executive Service. A new supervisor or SES who serves a single year of probation may never have to administer a performance rating cycle, complete a significant initiative, deal with problem employees, or complete any other long-term task their positions are designed to do. That means their agencies have to make a decision to retain them based on an incomplete picture of how they are doing. The probationary period for new supervisors and the SES should be expanded to two full years. In addition, probation for new appointees at the GS-11 or GS-12 level and above should be expanded to two years as well. Positions at lower grade levels typically do not have the type of long-term execution challenges that supervisors, executives and employees at higher grade levels face, so an extended probationary period at those grades is unlikely to uncover any additional performance issues.

In addition to expanding existing probationary periods, I recommend the Congress add an additional 1-year probationary period for any employee who is promoted. We have all seen examples of employees who are doing well until they are promoted beyond their level of competency. Much like the other probationary periods, promotion probation would extend the examining process so managers can see how an employee will do at the higher grade. If an employee fails during probation, s/he could be returned to the prior grade level where performance was acceptable. That is a far better solution than promoting employees to their level of incompetency and then leaving them there.

Better Management of Probation

Expanding probation to include promotions and extending it for others is not enough to make probation an effective tool. Many supervisors are not aware of when probation ends for the employees, do not believe their agencies will support them in taking action against a probationary employee, fear EEO complaints, and generally do not understand the process. All of those are fixable. Agencies can do better training for supervisors. They can simplify internal processes for taking actions during probation, and they can grant more authority to supervisors to take those actions. Chief Human Capital Officers and Inspectors General should be tasked with identifying internal process and cultural barriers and reporting them to agency heads.

Another issue that needs to be corrected is the automatic process for concluding probationary periods. Currently the probation ends and employees become permanent if the agency does not take action to terminate or downgrade them. That process must be changed so an agency is required to make an affirmative decision retain the employee. Supervisors should be required to not only make that decision, but also to sign a statement that the employee is performing at least at the fully successful or equivalent level, and that s/he has not been pressured by any official of the agency to make that retention decision.

Much Better Than the Alternatives

I know there will not be a lot of people who like the idea of expanding and extending probation. The alternative is to do nothing, or to pass the kind of legislation some are pushing that would undermine civil service protections for all employees and move government closer to an “at-will” model. The risks of that (a spoils system) are far greater than the risks of expanded probation. Expanding and actually using probation is something that can work, does not endanger the Civil Service, and should bring more accountability.

This column was originally published on Jeff Neal's blog, ChiefHRO.com, and has been reposted here with permission from the author. Visit ChiefHRO.com to read more of Jeff's articles regarding federal human resources and other current events along with his insights on reforming the HR system.

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

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About the Author

Jeff Neal is a senior vice president for ICF International and founder of the blog, ChiefHRO.com. He formerly served in the Obama Administration as Chief Human Capital Officer for the Department of Homeland Security and Chief Human Resources Officer for the Defense Logistics Agency. Jeff is also a Fellow at the National Academy of Public Administration and a Partnership for Public Service SAGE.

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