You Get What You Paid For!!

By on May 17, 2016 in Human Resources with 43 Comments

Image of businessman holding icons of people in the palms of his hands - depicts human resources concept

The number of gifted and knowledgeable people working in human resources are rapidly disappearing onto the retirement rolls. This is particularly true for those engaged in employee and labor relations where the talent needed to be truly effective takes years of experience and specialized training. It is also requires an insatiable thirst to read case law and to learn how to apply it appropriately.

Reading too is a skill that is on the endangered species list. As a consequence of these divergent paths, this responsibility is being assumed more by attorneys in the counsel’s office as opposed to the ER and LMR specialists.

During my tenure in government, the attorneys handled cases going before the Board, whereas the LMR specialists represented management before arbitrators. I was extremely fortunate whereas I had two fabulous courses in arbitration case preparation and presentation. It was this training, when coupled with my other training and experience that allowed me to retire with an unblemished track record in arbitration, and it was far more than one case.

Very recently I attempted to bring this very same arbitration training to the Boston area. The instructor would have been a former government litigator, who also teaches labor law at the University of Maryland. The course was cancelled because no one enrolled. Given the number of agencies in the New England area with labor unions, and the number of HR offices, I was astonished with this lack of interest, especially since there has not been a comparable arbitration course in this area in more than 20 years.

Last spring the same vendor, Dennis Hermann and Associates, offered a three-day course on FLSA and FMLA. Only six students enrolled and two had to withdraw after the first day because of ongoing work back at their agency. One of the largest government training institutions has completely abandoned the New England federal community because agencies will not support training, even when it is brought to their doorstep.

Now, let me try to illustrate what the lack of training can create.

Presently, there is a young woman, who has been advised by her agency that she may lose her federal position, after a number of years of government service because the Office of Personnel Management determined, in an “accountability review” that five years ago she received an illegal appointment.

According to OPM’s 2013 finding, she was erroneously placed, under a category rating process, at the “A” level, and she was referred along with the rest of the best qualified applicants. She only learned this a few weeks ago for the first time, and that her fledgling career was in serious jeopardy through absolutely no fault of her own.

The fact that this has been percolating for nearly three years, and the person who has the most to lose has never been made aware of this is deplorable. The agency has apparently requested OPM to regularize her appointment, but this request was denied. She has been told that she will need to recompete for her own position, which she is doing. If she is not within reach because of veterans preference or other, then she most likely will be removed, again because of someone else’s error.

It is also conceivable that the OPM reviewer on the accountability review is wrong, and she was indeed properly placed at the highest level (good gracious, OPM being wrong). She was determined to be eligible for consideration at a grade level higher than the one she was appointed. However, it is almost impossible to determine whether the conclusions made during the review are correct since her agency is refusing to provide her with any of the documentation that is directly relevant to her situation.

Although her supervisor wants to keep her since she is a good performer, it appears that agency counsel is circling the wagons (I guess pride is more important that fairness and truth).

Now, let us assume the best possible outcome: that she is within reach, and now can be legally appointed.

Because she has been serving for five years under an improper appointment, OPM’s regulations state that:

However, the employee would not be given service credit for time-in-grade and career tenure since the individual did not hold a “proper” competitive appointment. Therefore, we would allow retention to avoid hardship to the employee that loss of employment would cause but, to protect competitive principles, service credit for career tenure and time-in-grade can begin only from the date of the variation.”

I thought Draconian thinking of this nature disappeared when King John signed the Magna Carta. Oh, there is an alternative. OPM’s policy states that:

“If it can be determined that the employee would have been reachable at some point in the past, we can grant a variation to retain the employee and grant full service credit including career tenure and time in grade from the date the person would have been within reach providing there is proof that the employee would have been reachable, i.e. old vacancy announcement and certificate of eligibles.”

I cannot make up something this ludicrous.

Can you imagine the level of effort to attempt to reconstruct prior vacancy announcements to determine whether she could or should have been placed in Category A for consideration, and not blocked by a veteran?

There is an expression in total quality management – we do not have time to do it right, but we must make time to do it over again. That is never an acceptable operating philosophy.

If you think this may be an isolated case, then look back to September 2013, and the Bonneville Power Administration, who lost all of its delegated authority after an OPM accountability review.

There are also a number of other examples, including the Department of Labor’s Atlanta Region. This is serious business, and the consequences can be enormous.

The person above is presently standing on the edge of the cliff not knowing what her future may hold. Not only can innocent people be victimized by ineptness, and a lack of a quality performance by human resources staff, but an entire organization can be adversely impacted because of a lack of technical training, adherence to public laws, rules and regulations, and the absence of supervisory oversight to determine everything is completed properly.

Be glad you work for the federal government. If mistakes like this occur in the private sector, HR can be personally liable. This is true for violations of a person’s FMLA entitlements (Graziadio v. Culinary Institute of America, No. 15-888, 2nd Cir., 2016).

The failure to send the human resources staff, especially the newer personnel, to the technical training they MUST have will only be repeated in future situations and articles like this one. The same can be said for the first line supervisors who are being equally short changed in terms of their professional development.

You get what you have paid for. In this case, the outcome is potentially disastrous for someone who deserves far better.

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

About the Author

Bob Dietrich has more than 37 years of federal human resources experience and he is a widely known trainer on FMLA, FLSA, Employee and Labor Relations, HR for Supervisors, and is available to bring training to your agency. It is far cheaper to bring the instructor to the class as opposed to the class to the instructor. He may be contacted through Dennis Hermann & Associates.

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