Considering Prior Discipline in the Selection Process: Can You or Can't You?
By Bob Gilson
Sunday, August 12, 2007
Using prior disciplinary actions in the selection process in Federal employment raises some interesting questions.
The Office of Personnel Management (OPM) doesn't mention the topic anywhere. The Merit Systems Protection Board (MSPB) endorses and encourages reference checks but doesn't say much at all about what you do with derogatory information if you get it. EEOC, in several cases, finds no discrimination in considering prior discipline but only mentions it in passing.
I am willing to bet there are very few if any Agency staffing policies that address the issue. For your information,, the discussion is limited to an internal placement action, not new hirse and so I've got to discuss all this in the context of merit staffing and it's lingo. At the risk of being accused of turning over another rock, let's do it and take a look and see what kind of critters are under it.
Qualifications
There is some staffing jargon you must get by to figure this out so here goes. Qualifications Standards (issued by OPM) are the minimum requirements a person must meet to be even considered for a job. These mostly address experience and education and are generally backed up by an application and, if the employee is a Fed, by whatever's on the persons Official Personnel Folder (OPF) (contents closely regulated by OPM). Now I know I don't get out much, but I've never seen a job announcement that said anything like, "If you've been fired or disciplined, you can't have this job"! I know, I know, there is suitability but I'll come to that.
Selective Placement Factors
Agencies may add, with OPM's approval, Selective Placement Factors that may be used to screen out people with or without certain skills or abilities. These may include such things as language fluency, experience with a specific software program, and so on based on a demonstrable need for the skill. Agencies may also screen out people who have or lack specific physical conditions or abilities. For example, I doubt the Border Patrol would qualify a sightless person to be a helicopter pilot (although that condition apparently doesn't dissuade states from issuing drivers' licenses to a number of people with whom I've shared the road.) Again, I don't think it's routine (or ever happens) that one of these ever relates to discipline.
Quality Ranking Factors
Another consideration which won't qualify or disqualify you for a job but may get you a leg up is a Quality Ranking Factor. Beyond run of the mill experience and education that gets you considered, these factors move you up the list. These may also include language facility or knowledge of a software program when management considers it a "nice to have" versus a "must have". If you've seen discipline listed as a negative quality ranking factor, please let us know.
Crediting Plans and Selection Criteria
So the way it works is that minimum qualifications and selective placement factors are applied to applications to get a list of the Minimally Qualified. Then Agencies apply a Crediting Plan, which may include Quality Ranking Factors, and compare applications until a list of "Best Qualified" applicants are identified. The next step is for a selecting official or panel (in some Agencies) to apply a final screen called Selection Criteria (usually developed by the manager filling the job) to decide who gets the job. Again, I've never heard of either a Crediting Plan or Selection Criteria that listed discipline as a factor.
So, let's say I've been suspended a few times (most readers would say the charges would have to have involved disrespectful conduct). I don't have to list the suspensions anywhere in my application. The manager who gets the call for my reference says I'm an average or better performer and come to work on time (in DC, I'd be on the BQ list every time) but neglects to mention the discipline. So I keep getting selected and suspended, selected and suspended. Finally, a manager takes MSPB's advice and does a fairly complete reference check including looking at my OPF and finds those suspensions which like diamonds are forever (at least in an OPF). So what's the manager to do?
In 2005, the MSPB issued a study called "Reference Checking in Federal Hiring: Making the Call". The Board addressed the legal issues in background checking relating to the Privacy Act and liability for defamation involving reference providers. For more on this, see Steve Opperman's recent excellent series of articles on reference checks. What the Board never addressed is how this information may be used. (See, for example "When You're the One Being Asked for a Reference"; "References: An Art, Not a Science")
Suitability Determinations
Quoting OPM:
Suitability refers to identifiable character traits and conduct sufficient to decide whether an individual is likely or not likely to be able to carry out the duties of a Federal job with appropriate integrity, efficiency, and effectiveness. Suitability is distinguishable from a person's ability to fulfill the qualification requirements of a job, as measured by experience, education, knowledge, and skills. Suitability actions include the following:
A non-selection for a specific position is not a Suitability action unless one or more of the above actions is taken. (My Emphasis)
- Cancellation of eligibilities
- Debarment
- Removal
OPM's suitability regs can be found at 5 CFR 731
Most of the authority is delegated to Agencies to determine new hire suitability but little is said about current employees. It appears that Agencies could find internal applicants unsuitable for certain positions in the Agency but that's different from not picking them because of a checkered disciplinary record, or is it? One thing is clear. Employees who are determined by an Agency to be unsuitable have a right to appeal that decision to MSPB.
So How Does this All Come Down?
A manager is considering the elite who made the best qualified list. We must recognize that the frequently disciplined are generally less likely to make it in most cases but could. Interviews are conducted, criteria are applied and it comes down to Peter, Paul and Mary. All have similar experience and education. All could do the job. All were rated level 4 on a 5 level system for the past three years and have gotten performance awards at one time or another. Paul was suspended for three days four years ago for using one of Uncle's computers to view porn. Mary got a reprimand last year for failing to call in an absence after being counseled twice for the same thing over an eight month period. The job requires extensive computer use and reliability is very important to the manager.
Only Peter is squeaky clean.
I say we pick Peter. What do you think? Please use the comments or email below to voice an opinion. We'll record and total up the responses and publish them as part of a follow up article in which we'll look at some of the consequences and potential fallout of your decision.
The opinions above are mine and mine alone except where I quote somebody.
© 2010 Robert J. Gilson. All rights reserved. This article may not be reproduced without express written consent from Robert J. Gilson.
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