Is it Too Hard to Fire Federal Employees?

November 3, 2020 9:26 AM
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For years, there has been an obsession with the answer to this question: Is it too hard to fire federal employees? 

On two different occasions a number of years ago, while testifying before Congress on matters totally unrelated to the firing of federal employees, I was asked by Congressmen why is it so hard to fire federal employees. I found the question quite interesting but had to tell them I did not have jurisdiction over firing employees, I only dealt with violations of the Federal Service Labor Management Relations Statute (Statute).

Federal employees have the right to appeal a removal action to the Merit Systems Protection Board (MSPB) or through grievance arbitration, if represented by a federal union. These due process systems are the basis of many of the complaints about the difficulty in firing federal employees.

The current Administration is clearly of the view that it should be easier to fire federal employees. It issued Executive Order 13839 telling federal agencies that when bargaining a new collective bargaining agreement to propose eliminating the right of employees to file a grievance over removal actions. It also sought to limit the use of performance improvement plans (PIP). Generally, the argument is that employees have a due process right to appeal a removal to the MSPB, so there is no need for arbitration.

When this issue initially went to the Federal Services Impasses Panel (FSIP), the Panel uniformly said that it was constrained by a 1983 Federal Court decision which said that the Statute provides for a broad scope grievance procedure and therefore management could not limit it unilaterally. The parties could jointly agree to limit scope of the grievance procedure but one side could not do it by themselves. In more recent decisions the FSIP has ruled in favor of Agency proposals eliminating the right to grieve a removal action.

Why do away with the right to grieve a removal action? It’s all about the numbers. Statistically, employees do considerably better before an arbitrator than before an MSPB judge. If you take away the arbitration option you increase the likelihood that the removal will be upheld.

Interestingly enough, the MSPB has not been able to decide appeals of removal actions for a number of years because of the lack of a MSPB Board Members. As reported, there are thousands of appeals waiting to be decided. This means no final decisions on appeals of MSPB judge decisions can be issued. An employee whose removal action was upheld by an MSPB judge stays fired until sometime in the future when there is a quorum of the MSPB. 

This Administration’s efforts to eliminate arbitration increase the likelihood that an Agency decision to remove an employee will be upheld. However, an Agency must still be prepared for third-party review of its actions. The Agency must be able to provide support for its decision to remove an employee.

For the most part, the difficulty in firing deals with firing substandard performers. Conduct based actions do not receive nearly the same concern as performance-based actions. This is most likely because, justified or not, there is a belief that there are a lot of poor performers in the government.

At Will Employment

Some have endorsed the idea of moving to a termination at will approach in the federal sector. At-will employment is a term used in private sector labor law for contractual relationships in which an employee can be dismissed by an employer for any reason (that is, without having to establish “just cause” for termination), and without warning, as long as the reason is not illegal (e.g. firing because of the employee’s race, religion or sexuality). When an employee is acknowledged as being hired “at will,” courts deny the employee any claim for loss resulting from the dismissal.

The rule is justified by its proponents on the basis that an employee may be similarly entitled to leave his or her job without reason or warning. The practice is seen as unjust by those who view the employment relationship as characterized by inequality of bargaining power.

However, there are some restrictions on termination at will. Common law wrongful termination includes terminations that violate a state’s public policy, terminations after an implied contract for employment has been established, and terminations in violation of the implied covenant of good faith and fair dealing. Wrongful termination also includes terminations in violation of federal, state, or local anti-discrimination laws. 

An employer in the private sector can remove an employee without a showing of just cause on any basis as long as it does not violate any of the wrongful termination exceptions to termination at will noted above.

However, the termination at will doctrine does not necessarily result in no litigation over an employee’s termination. There is actually considerable litigation over termination in the private sector quite often on the basis of discrimination, although, in comparison to the absolute right of an employee to challenge their termination in the federal sector, there is less litigation in the private sector and considerably fewer avenues of appeal.

Due Process Rights in the Federal Workplace

Why do employees in the federal sector have these due process rights to challenge their termination? The usual answer is to protect them from being terminated if there is a change in Administrations.

Protections for civil servants started many years ago with the Pendleton Act as a way to lessen the impact of the spoils system which was in place for many years. The spoils system resulted in massive turnovers in federal civil servants when a new Administration came in.

The intention of the due process system is to prevent a new Administration from making wholesale changes in the makeup of the federal bureaucracy based on party affiliation. Career federal civil servants are protected from arbitrary loss of their job if they are not affiliated with the new political party in power.

Federal vs. Private Sector

Having been a manager in the federal sector for 20 years and in the private sector for an equal amount of time, I can see the advantages of both systems.

Trying to remove someone for performance in the federal sector can be a very arduous task. The supervisor must carefully follow the process for substandard performance found either in a collective bargaining agreement, OPM regulations and agency regulations.

Removal for substandard performance requires careful documentation and counseling and other meetings with the employee and sometimes the employee’s union representative. The documentation need not be perfect, but it must fully substantiate the reason for the substandard performance removal. Many supervisors do not want to be bothered with this amount of work. 

In the private sector, this process is considerably easier. If someone is not meeting the requirements of the job or if the supervisor does not like the employee for any reason other than those proscribed by law, it results in a brief meeting with the supervisor and that is the employee’s last day. In most companies any such firing would be vetted with the personnel office to insure it does not violate company policy or any law. It is very quick and easy in comparison to the federal sector. 

I recall working with one federal Agency with over 6,000 employees and negotiating a provision in its collective bargaining agreement concerning substandard performers. The negotiations were quite tense. I asked how many removals for poor performance were done over the last 5 years. The answer was usually no more than a handful each year and sometimes fewer than that. But additionally, there were a number of resignations by employees facing a performance-based action – possibly another five per year.

This Agency was not that different than other Agencies I have worked with. It wasn’t the lack of a collective bargaining provision on substandard performers that caused the very low number of removal actions for performance, it was the lack of will on the part of managers to take the actions.

Performance based actions start with the performance rating an employee receives. In most federal agencies, employee performance ratings are generally very high.

As an example, in a five-level performance system it is quite rare for an employee to receive below the three level which is usually considered fully successful. If the employee receives a level one appraisal, the employee must be put on a performance improvement plan (PIP). There is a belief among some human resource professionals that some supervisors intentionally give employees ratings above a level one in order to avoid going through with a performance-based action.

The interesting question is “would supervisors fire more employees for performance-based reasons if they did not have to go through the requirements for a PIP?” Are there that many substandard performers not being removed because it is too hard to do it? The answer to that question is unknown.  

Is there value to having the PIP process? Some employees come out of the PIP process never having a performance problem again. Some resign because they know they will not be able to satisfactorily complete the PIP.  Others are removed for not satisfactorily completing the requirements of the PIP. 

If PIPs were absolutely done away with, would we have a better workforce?

The current Administration has issued the above-mentioned Executive Order which reduces the requirement for PIPs. Will this result in a greater number of employees being removed? Time will tell.

The first input into the removal process is a supervisor who is willing to fire the employee. So far, there is no evidence; the Executive Order has not changed the inclination of supervisors to fire more substandard employees nor is there any way it could. 

When deciding to fire an employee for substandard performance, other considerations, such as having to recruit a replacement and whether there is a suitable replacement available, come into play. Who is going to do the job of the fired employee when no one is there to do the work? How much training will the new employee need to be successful. Will the supervisor be able to refill the position?

It is not always the firing process standing in the way of the supervisor taking action. Some managers would rather try to fix an employee’s performance problems rather than face the uncertainty of developing a new replacement.

Conclusion

The answer to the question of ‘is it hard to fire federal employees’ is probably yes. It is harder to fire federal employees in comparison to the relative ease of firing employees subject to termination at will. The unanswered question is whether it should be harder to fire federal employees to preserve a merit based civil service.  

Should the due process system available to federal employees be replaced by summary removals with no appeal rights? To protect the merit system in the federal service, the answer is probably no.

Is there value to the American people to have a career federal civilian service which is not subject to the total control of a particular political party? The answer to this by most Americans is probably yes. The cost of a non-political civil service is a due process systems to protect federal civil servants.

There are various options presently being tried by the current Administration to streamline the process and make the current system less burdensome for supervisors. These include reducing time frames for actions and eliminating the need for PIPs. It remains to be seen if these will result in increased use of removal actions.

The most important consideration is making a process that supervisors will use and employees believe is fair. Few supervisors relish the act of firing an employee as many consider themselves too busy to go through the process. The real question may not be “is it too hard to fire federal employees” but instead “do supervisors really think more employees should be fired?” If so, why aren’t they doing it? You can make an improved process, but if few are willing to use it, it may not bring about any real change.

© 2020 Joe Swerdzewski. All rights reserved. This article may not be reproduced without express written consent from Joe Swerdzewski.

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About the Author

Joe Swerdzewski, former General Counsel of the FLRA & owner of JSA LLC is the author of The Essential Guide to Federal Labor Relations, A Guide to Successful Federal Sector Collective Bargaining, etc. For more info on JSA’s services, email [email protected] or subscribe to JSA’s newsletter.

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