A Tale of Two Factors

The author says that federal HR advisors have gotten more cautious in their approach to discipline and often overlook the main focus of solving the problem.

Author’s disclaimer: This article is about Federal workplace discipline. I was an Employee/Labor Relations Specialist and have been presenting seminars in those areas of HR for over 30 years. Discipline can be used by agency management as a tool or a weapon. I remind seminar participants of that in every class I present. This article assumes good-faith leadership and doesn’t address the unscrupulous use of disciplinary actions to harass and/or retaliate.

“You want to do what?!”

When I was a new Employee Relations Specialist (at a large naval shipyard), I began fielding calls from supervisors and managers that fit a soon-to-be-familiar pattern. They ran something like this, “He/She did this and this and this and that. They also failed to do this and this and this and that. I want to fire him/her.”

The instances of misconduct spanned months, if not years. There was little reason to doubt the facts. 

I would respond with questions. “Have you initiated disciplinary action before?” “Have you confronted and spoken with them?” “Did you document those sit-downs?” Anyone who has performed the job that was once mine, knows the routine. Too often the supervisor’s answers were in the negative. 

I would then look at the most recent one or two instances of alleged misconduct, have management initiate the formal investigative (Weingarten) interview and, if the employee misbehavior was minor, draft a reprimand or a lesser action the Navy calls as Letter of Caution. From there, either the problem was solved or an excruciating and lengthy process continued. 

Since leaving my government position, I’ve been teaching progressive discipline to next generations of management. It appears as if nothing has changed… or things may have gotten worse.

HR is even more cautious, if not pedantic. Legal offices are much more involved in the process. …and management is even more taxed and inflamed in these rare cases of repeat offenders. Meanwhile, hardworking coworkers wish that something were being done to end the distracting conduct.

Watching paint dry

In an article from years back, I outlined a typical progressive discipline history as follows:

  • Verbal counselings (often more than one);
  • Letter of Warning/Caution/Counseling;
  • Letter of Reprimand;
  • 1-day suspension;
  • 3-day suspension;
  • 7-day suspension;
  • 14-day suspension; and finally
  • Removal

Imagine a non-governmental manager reading that. Readers should also remember that discipline is administered to those who break the rules… and get caught! From the initial warnings to removal (assuming the offenses aren’t of great seriousness) years can pass. Add to the equation the likelihood of grievances, complaints, and/or appeals in cases involving repeat offenders. Dedicated employees can lose patience, and the cost of their moving on to another job is dramatic.

Stating the obvious

This issue got the attention of the current administration, as evidenced by Executive Order 13839, titled “Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles”. As regards disciplinary actions it looks unremarkable to me. For instance, Section 2 (b) reads:

Supervisors and deciding officials should not be required to use progressive discipline.  The penalty for an instance of misconduct should be tailored to the facts and circumstances. 

Duh! Being late arriving at work and sexually harassing a coworker are miles apart. So are employees who are first-time offenders vs. those who have been caught and disciplined repeatedly. Progressive discipline is normal when it comes to lesser transgressions and inappropriate when dealing with “egregious” offenses.

Section 2 (c) of the Order is more interesting:

Each employee’s work performance and disciplinary history is unique, and disciplinary action should be calibrated to the specific facts and circumstances of each individual employee’s situation.  Conduct that justifies discipline of one employee at one time does not necessarily justify similar discipline of a different employee at a different time — particularly where the employees are in different work units or chains of supervision — and agencies are not prohibited from removing an employee simply because they did not remove a different employee for comparable conduct.  Nonetheless, employees should be treated equitably, so agencies should consider appropriate comparators as they evaluate potential disciplinary actions.

This paragraph also states the obvious. Most readers are familiar with the Douglas Factors. They were created by the Merit Systems Protection Board (MSPB) almost 40 years ago and concerned the most serious disciplinary actions.

In the intervening years, the Douglas factors have been adopted by most agencies to be used in any/every disciplinary case. Like the Executive Order, the factors focus on individual circumstances. Equity (or penalties given for similar offenses) is included among them. While very important, it is just one of 12. 

Less conspicuous in EO 13839 is the mention of an unusual word to those not steeped in law or working in my side of HR – “comparators”. As explained by the MSPB on their website, comparators are individuals cited by a disciplined employee who were treated differently. These individuals must be “similarly situated”, a term the article explains.

But here’s the rub. Are agencies really considering the differences in people’s particular disciplinary circumstances or do HR and legal offices approach disciplinary sanctions more mechanically by paying inordinate amounts of attention to just a single factor – namely consistency?

Looking into my old house from outside

I believe many of those supervisors and managers calling me back in the day were, actually (and sometimes legitimately) ready to fire the misbehaving employee. As an HR specialist, I tempered their frustration and, in the absence of past/progressive discipline, began at the beginning. “If I’ve told her/him once, I’ve to them 1,000 times” won’t suffice. We in HR commonly force agency management to slowly and quiescently trudge through the slowly escalating disciplinary options described above. What they want is decisive action.

This dynamic can result in a tension that breeds mistrust and frustration on both sides of the organization. As I meet and instruct supervisors, managers, union officials, and HR specialists, I don’t ignore the fact that aggressive, petty, biased, and vindictive supervisors/managers do exist (see the disclaimer above). I also respect the fact that, when management approaches HR with a disciplinary matter, they are the customer. 

Too often I hear management officials say, “HR won’t let me…” or “Legal says we can’t…” While supervisors and managers of yesteryear could (and probably did) say the same about me, it has become apparent that HR and legal advisors have become even more cautious over the years.

Forests and trees

While HR and legal offices are deeply focused on equity and consistency, they often overlook the primary focus of their clients – to solve the problem. As delineated in the original Douglas decision, management is primarily focused on Factor 10 – the employee’s potential for rehabilitation. 

Most of us, score highly in this area. If you tell me to stop doing something that’s inappropriate or violates rules, I’ll stop doing it. But if such an admonition results in a contest (“I can wear whatever I want to work” or “The First Amendment allows me to say whatever I want” or “You can’t prove I did it” or “It’s my sick leave and I can use it as I wish”), then potential for rehabilitation is low and the desire to lower the boom increases.

When introducing the Douglas factors back in 1981 the Board wrote:

Selection of an appropriate penalty must thus involve a responsible balancing of the relevant factors in the individual case. The Board’s role in this process is not to insist that the balance be struck precisely where the Board would choose to strike it if the Board were in the agency’s shoes in the first instance; such an approach would fail to accord proper deference to the agency’s primary discretion in managing its workforce. Rather, the Board’s review of an agency imposed penalty is essentially to assure that the agency did conscientiously consider the relevant factors and did strike a responsible balance within tolerable limits of reasonableness.

Thus, while the employee’s potential for rehabilitation isn’t the only consideration, it can sway the balance, as it did in one of the 7 cases decided by the Board in Douglas.

Employees who are repeatedly caught in violation of policies and norms should be viewed in a different light than the vast majority of their coworkers. Supervisors and managers are well aware of this. HR and legal offices should be.

A more customer-focused approach

Potential for rehabilitation (like another Douglas factor – supervisory confidence) is a tough one for HR and legal to assess. It isn’t based or predicated on documentary evidence, as are others like past disciplinary record penalties given for similar offenses. “Potential” can only be evaluated by asking for opinions and judgements. 

Whether a child will respond to discipline by keeping their nose clean or by assuring you don’t catch them next time, isn’t something that can be conclusively proven. It requires more extensive understanding of people and their motivations than does researching similar past cases. A parent should be able to explain why they punish their kids differently. So should supervisors and managers.

Thus, “potential” can only be demonstrated to a judge through credible testimony… often from the lowest levels of management. That represents a risk HR and legal representatives often prefer to avoid. I believe the intention of discipline (short of removal), is to ensure the offending (or any other) employee complies with agency rules and norms in the months and years ahead. If that’s true, then the individual’s potential to change their behavior is paramount, even if it’s difficult to elicit and challenging to present in a hearing.

It is incumbent on HR and legal gatekeepers to listen to supervisors and appreciate their frustrations, as it is on management to articulate their motivations. When this happens, those employees who just had a bad day or made a stupid decision can be easily distinguished from those who chronically test their leadership or believe that rules don’t apply to them. The rest of your workforce is watching… and waiting.

About the Author

Robbie Kunreuther is the Director of Government Personnel Services (GPS). GPS provides 1 to 3-day seminars to Federal agencies in four subject areas: Dealing with performance and conduct issues; Developing sensible performance appraisal criteria; Fostering cooperative labor-management relations; and Applying mediation skills in the workplace. Over the years, Robbie has trained thousands of Federal supervisors, managers, HR specialists, and union officials. For more information about him and GPS, go to trainingfeds.com.