I recently taught a seminar for the Department of Labor. After 26 years of teaching seminars for Federal agencies, it was my first time working for them. In preparing for this seminar, I encountered an unanticipated technical surprise. DoL has no “table of penalties.” I don’t know how the decision was made to do away with this traditional and unnecessary HR encumbrance, but I applaud them for doing it.
By now, virtually all FedSmith readers are familiar with the 12 “Douglas factors”. Managers with the unfortunate task of disciplining subordinates have probably been educated by an HR specialist in how the factors are used to determine an appropriate penalty or corrective action. One of these twelve considerations is the agency table of penalties… which the Department of Labor no longer employs.
For those readers who have never seen their agency’s table of penalties, ask HR for a link or copy and enjoy a little light reading. When teaching a seminar titled Dealing with Performance and Conduct Issues, copies of my client’s table are distributed as we discuss Douglas factors. As the tables are passed out, I commonly say, “This is one of the more bizarre documents created by the Department of _______.” I have my reasons for such a deprecating introduction.
From a time before memory
I began the HR phase of my career in 1980 with the Department of the Navy. Navy’s “Guideline Schedule” (another name for table of penalties) was an appendix to their agency discipline instruction. Apparently, someone in headquarters had to come up with a list of every possible misbehavior at work and the level of discipline appropriate to each. The amalgamation was put into a lengthy grid of boxes.
In the case of DoN (and many agencies I’ve taught for since), the table goes on to assume penalties for a repetition of each offense… and even the recommended sanction should there be a 3rd event of similar rule-breaking. Not an assignment for optimists. I have delved into the Code of Federal Regulations seeking the requirement for such tables. As the Department of Labor must have discovered, it doesn’t exist
As with other agencies, Navy’s table predated the landmark Merit System Protection Board (MSPB) decision in Curtis Douglas, et.al. v. Veterans Administration, et.al. So when the MSPB included consulting the table as a factor in choosing a reasonable/defensible penalty, they were already in use across government. If anyone knows how these documents came into being, they are long-retired, if not deceased.
Why the table isn’t needed
It has now been thirty four years since the Douglas factors were invented and the time has come for to retire your agency’s table of penalties. The reasons are many. I’ll mention six in this article.
- The tables are commonly out of date. I often come across agency tables that were last updated over a decade ago. While researching agency materials for another agency, I found one that shows it hasn’t been revised since 1981 – Ronald Reagan’s first year in office. I remember the days of electric typewriters… and so do many tables of penalties. Keeping up with the times by revising/updating these documents doesn’t happen often. When it does, I see the task as an unnecessary use of HR resources.
- Most of these references are inflated in terms of the penalties recommended. Tables of penalties consistently presume the lowest disciplinary action to be a Letter of Reprimand. In practice, however, supervisors are commonly advised to precede reprimands with verbal counseling and/or written warnings. I realize written reprimands are considered the minimal “formal discipline” because copies are temporarily housed in the Official Personnel Folder. For front line managers however, there is an unnecessary disconnect when sanctions in the table that commonly exceed those used in actual practice.
- Tables of penalties too often show “Reprimand – Removal” as the recommended discipline range for a first offense. This is silly – if not downright embarrassing. The guidance might just as well read, “Do your own thing.” If any disciplinary offenses are worthy of a penalty range of reprimand to removal, why not all? Once again, the table serves as much to confuse as illuminate.
- There is already a Douglas factor titled “Penalties given for similar offenses”. Managers and HR specialists must also look into how previous offenders were disciplined in your agency. I tell my classes that this may be the Douglas factor most often examined by judges such as labor arbitrators and Administrative Judges working for the MSPB and EEOC. Requiring an investigation into similar cases makes consulting a table of penalties redundant, at best.
- As previously mentioned, most agency penalty tables show recommendations for subsequent offenses. This creates yet another layer of confusion when the past offense is dissimilar to the current transgression. When asked, “Is this a first of second offense?” Employee Relations Specialists must interpret the intent of rows and columns in a table into which they had no input. There often no clear answer. In the absence of the table, prior disciplinary records can be considered without this Ouija -like exercise.
- Agencies (like the Department of Labor and Social Security Administration) without tables of penalties don’t seem crippled in its absence. They are able to employ disciplinary action when necessary and are none the worse for having jettisoned this arcane document. In fact, it’s one less factor to consider, document, review, and explain in testimony should there be a hearing down the road. If the disciplinary process is too complicated (and all but the insane think it is), why not make it a little leaner?
Be the change you want to see
So it’s time to review. These tables date back to who-knows-when and are not required by law or regulation. They often do more to confuse than illuminate. The information they contain is not necessary since agency disciplinary practices are already taken into account when determining an appropriate penalty. If there’s a reason for keeping the table at your agency, it can’t be much more than, “this is the way we’ve always done it.’
For readers who have made it this far, you may want to contact the Office of Personnel Management and/or your Chief Human Capital Officers to request the change that’s already been made at the Department of Labor and Social Security Administration. I feel safe in predicting that not many within or outside of HR will miss their table of penalties once it’s gone.