Disciplinary Action Process for Fed Workers Ripe for Change?

Change is afoot in Congress for the federal human resources system for rating and removing federal employees. Federal employees who have been around for awhile may think we are moving forward to 1978—the last major legislative change in these areas.

hange in the federal government takes time. Decades for change to be implemented are not uncommon. For change to occur, there is often a series of events leading Congress or the administration in power to decide that something has to be done. And, often, the changes that are implemented through new legislation or new regulations leads to at least some unexpected results.

The process for taking disciplinary or adverse action against a federal employee is an area that may be ripe for change and actions in Congress show that the process for taking serious action against a federal employee is underway.

Legislation is currently pending to alter the use of administrative leave. The reason is because agencies were abusing the authority and some were apparently using it as an excuse to avoid making decisions to implement adverse action. (See Growing Support for Curbs on Administrative Leave in Agencies) There is a growing chance that new legislation will pass to place restrictions on agencies in how administrative leave is being used.

There are multiple appeals that are open to a federal employee and a creative lawyer or seasoned advocate for a union can tie up the process for months or years before any final action is taken. That is probably a factor in the low number of federal employees who are removed each year. In fiscal year 2014, agencies fired 9,537 employees for discipline or performance issues and has been going down. The firing rate has been 0.46 percent of the federal workforce recently.  This is the lowest rate in 10 years and compares to a rate of 3.2% in the private sector.

Of course there can be numerous reasons for a lower rate of removal actions in the federal workforce, but the high cost in time and effort of defending against multiple appeals is likely a major factor.

The inability of the Department of Veterans Affairs to fire more people after the scandal that has hit that agency hard has led to the Merit Systems Protection Board (MSPB) address the issue of the pending legislation in its annual report and to publicly defend its decisions overturning the removal of several VA employees. The negative reaction to the MSPB decisions, and the growing frustration in Congress over continuing problems in the VA, may lead to new legislation that will make it easier to implement removal actions in that agency.

26 federal agencies have recently been hit with requests for information from the House Oversight and Government Reform committee. These letters are requesting the following information: “all policies, procedures, and/or guidance for taking corrective, disciplinary and adverse actions against civilian employees (including senior executives) in response to misconduct or poor performance, including your table of offenses and penalties….”

The latest letters appear to be part of a broader investigation into management of the federal workforce. The committee has also requested information from agencies regarding the amount and number of awards to federal employees, the use of official time by union representatives in agencies, and information regarding the performance ratings of employees in agencies.

The last major change to the federal government’s human resources system was the Civil Service Reform Act of 1978. In part, it was an effort to make it easier to fire a federal employee for performance with a merit based performance system, set up a Senior Executive System (SES) that was more responsive and more innovative and more mobile, and to create a legislative underpinning for federal employee unions. As part of this broad overhaul, the Civil Service Commission became the Office of Personnel Management (OPM).

Millions of dollars were spent in agencies setting up new performance based plans for each employee, restructuring the system for senior people in government and training federal supervisors and managers in the “new” federal labor relations system. We will leave it up to readers to determine how successful this overhaul proved to be over the next 35 years or so. Many older employees would probably conclude there was a lot of time and money spent to implement systems that, over time, gradually yielded to internal pressure from unions, third parties and the federal bureaucracy in general and the current system looks very much like the system prior to 1978.

There is little doubt that the leadership of the House Oversight Committee has in mind altering the system for implementing adverse and disciplinary actions, including performance based actions, to make it easier to take action against errant federal employees. There could be a bill that emerges from the committee this year. As we get closer to the November elections, in a political season that is proving to be exceptionally volatile and unpredictable, final action on changes such as an overhaul to the federal system for taking adverse actions may be delayed until after the elections.

Congressional Request to Agencies for Adverse Action Data

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47