Make it Easy to Fire Federal Workers… And Then What?

By on July 28, 2016 in Human Resources with 169 Comments

Cartoon image depicting job termination of an employee

There is no shortage of proposals to make it easy to fire federal workers. In recent years we have seen proposals focusing on senior executives and others at the Department of Veterans Affairs, similar proposals regarding the Internal Revenue Service, and H.R. 4361, the Government Reform and Improvement Actproposed in the House of Representatives. The common thread in most proposals is that it is too hard to fire federal workers. The idea is that firing people is a good management practice and federal agencies should have an easier time doing it.

I will be the first to admit the government does a poor job of dealing with performance and conduct problems. Most federal workers agreed – in the 2015 Federal Employees Viewpoint Survey, only 28% of employees agreed that “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve.” Ask most experts and they will point to the cumbersome process for taking adverse actions and the multiple avenues for review (grievance/arbitration, EEO Complaints, MSPB Appeals) available to employees and say the process is just too hard. Others will point to lack of agency leader support for making the decision to fire an employee, or to lawyers who want to settle every case out of fear of losing one. All of those are decent points.

So – if dealing with poor performance is the problem, is making it easy to fire employees the solution? Not really. Let’s take a look at a couple of examples to see why that is the case.

Probationary Employees

The ultimate in easy firing is the probationary period. Unless an agency has imposed restrictions on itself (and believe it or not, some have), firing a probationary employee is a piece of cake. It works like this. “Hey Fred, here is a termination letter. Goodbye.”

What is Fred’s recourse? The regulations are simple and the requirements are straightforward. If Fred wants to appeal to the Merit Systems Protection Board, he can do so only if he alleges the termination was based on partisan political reasons or marital status or that his termination was not effected in accordance with the very simple procedural requirements. In other words, he has virtually no chance of a successful appeal.

The ease in removing employees during probation is the reason many people advocate for extending probationary periods for more than one year. H.R. 4361 includes such a provision. It seems to make sense. After all, if it so hard to fire anyone outside of probation, why not extend the probationary period?

Transportation Security Administration (TSA)

TSA was created by the Aviation and Transportation Security Act of 2001, otherwise referred to as ATSA. Unlike most federal employees, who are covered by Title 5 of the United States Code, ATSA placed TSA employees outside of Title 5. Most TSA employees are in the screening workforce and are covered by ATSA Section 111(d), which says “Notwithstanding any other provision of law, [TSA] may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service for such a number of individuals as the Under Secretary determines to be necessary to carry out the screening functions of the Under Secretary under section 44901 of title 49, United States Code.”

So what does Section 111(d) mean? Does it really mean “Notwithstanding any other provision of law?” Yes, it does. That means Transportation Security Officers have none of the civil service protections that most other federal workers enjoy. TSA gets to write the rules and enforce them. The provision has been tested in court and it is iron-clad.

The Results

So, what do these examples of “fire anyone you want” look like in the real world? Last year I wrote a post called “Is it Probation if No One Gets Fired?”  where I said “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.” Nothing has changed since I posted that in December of 2015.

The situation with TSA is a bit different. Although a July 2016 report from the House Homeland Security Committee Majority Staff alleges TSA does not effectively deal with misconduct, it appears to do much more than the government as a whole. In the past 5 years TSA has fired an average of 2.9% of its permanent screening workforce each year. The government as a whole fires just under a half percent of its permanent workforce every year. It is safe to say that the ease of firing employees, combined with an organizational culture where firing folks is more acceptable, results in a higher number of terminations for performance or misconduct.

Does that equate to better agency performance? Probably not. Let’s use TSA as an example. If firing employees with performance or conduct problems drove morale up, we would expect to see TSA rising in the Partnership for Public Service “Best Places to Work” rankings. Last year TSA ranked 313th of 320 agency subcomponents. NASA, the top-ranked agency, fired 19 of its 17,000 employees. By most objective measures, NASA is a superb agency that does exceptional work and it does not fire a lot of people.

The problem is that agency performance is not driven by a small percentage of people who could or should be fired. Lets look at TSA again. TSA has about 55,000 screening staff and they screen over 700 million passengers per year – more than 1.9 million every day. Are problem employees a problem? Yes – that is why we call them problem employees. Do they drive an agency’s performance? No.

The overall performance of an agency is driven by the vast majority of employees who do their jobs. If we really want to drive performance and change in government, we need to focus on those folks. We need to give them training and the tools they  need to do their jobs. We need to give them leaders who understand the mission and provide real leadership. Those changes may not be as satisfying as showing someone the door, but they will drive performance improvements far more effectively than bumping up the number of firings from a half percent to 3 or 4 percent.

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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