Public-sector managers find addressing subordinates inappropriate
conduct or poor performance to be among their most distasteful
duties. They have a greater administrative burden than is typical
of their private-sector counter-parts for two reasons: the
public-sector employees civil service protections and he
difficulty in measuring the productivity of white-collar
intellectual capital positions. After reviewing agency websites or
visiting the human resources office to review documentation
requirements and employee appeal rights, managers may hope the
issue resolves itself or the employee transfers. In reality,
methodical documentation and consistent, open communication between
supervisors and employees are the most effective way to address
conduct and performance problems in both the private and public
sectors.
This article addresses the distinctions between private- and
public-sector employment law; the leadership behaviors needed to
establish positive work environments that will best support a
high-performing workforce; and the requirements for addressing
conduct or performance problems.
Comparing Private- and Public-Sector Employment
Law
The concept of employment at will is largely inapplicable to
public-sector employment relationships. Employment at will assumes
that employees can be terminated by their private-sector employers
without a stated reason, provided such termination does not violate
individual contract or labor agreements. It underlies employment
law in many state and local jurisdictions. Employees typically can
only challenge these terminations based upon violations of equal
employment opportunity laws.
Many state and local civil service laws follow basic federal
merit-based civil service principles. These principles were
originally incorporated into the Pendleton Act of 1883, and were
designed to address the corruption and waste stemming from
political patronage as the basis for employment decisions. But the
extent of employee appeal rights and the burdens of proof required
to document conduct- and performance-based actions has proven
frustrating to federal managers who are not likely to witness
blatant partisan political reasons as the basis for human resource
actions.
New political appointees quickly learn the regulations and intent
of civil service protections and are usually sensitive to the
consequences of violating these protections. Adequate excepted
service appointment authorities are available to integrate the
policy and philosophy of a new administration into federal
administrative operations. Bottom line: Accepting that employment
at will typically does not apply to public-sector environments,
government managers must follow a defined process to initiate
conduct- or performance-based action.
Creating a Positive Work Environment
Make sure you have created a level playing field, established the
administrative infrastructure that will give new employees the
opportunity to excel, and defined performance requirements. These
elements can help identify true conduct or performance problems
versus those caused by the work environment. Also, ensure your
leadership style reinforces good performance. Otherwise, your
malcontents may simply be voicing views that other employees have
not (yet) articulated.
Public-sector productivity is often measured in terms of producing
broad outcomes that prevent negatives for example, homeland
security programs that reduce the possibility of successful
terrorist attacks. This view of productivity is sometimes difficult
to articulate as a metric in employee performance standards. The
fact that much of the governments business does not involve
production of defined goods and services, but rather relies on the
application of intellectual capital, further complicates the
measurement process.
In addition, chronic budget problems over time typically lead to
hiring freezes and staff reductions, which creates an environment
where managers and staff too often must focus on short-term crises.
Over a period of months or years the administrative infrastructure
deteriorates: policies become outdated, standard operating
procedures do not reflect changes in information technology or
forms, and there is little time for training new staff. New hires
must rely on experienced staff to guide them. This creates
inconsistencies within the work unit and frustrates new staff, who
often become unsure of themselves and reluctant to take initiative.
Ultimately it falls upon supervisors and managers to ensure that
performance standards reasonably and accurately depict output
expectations, preferably in terms of measurable accomplishments.
Concurrently, their success in documenting deficient performance
may well be dependent upon clearly documenting that an employee
whose performance is deemed deficient had reasonable access to
current policies, procedures, and the training needed to
successfully perform their duties and responsibilities.
Leading questions
Leaders should query staff to assess their effectiveness in
executing their assigned mission using available resources.
Have I Successfully Balanced People and Process
Priorities?
An organization in a state of crisis management will need to take
aggressive action to update policies and procedures, review case
files, and do whatever is necessary to quickly bring the
organization into regulatory compliance. If there is not enough
time for bottom-up change actively involving employees in process
action teams, surveys, and committees, you may pass the inspection,
but you will not have created a high-performance culture.
As predicted by Robert Blake and Jane Mouton in the 1978 book,
The New Managerial Grid, high-performing organizations
ultimately need to address the concerns of their employees and get
their buy-in for change to be incorporated into the performance
culture.
Otherwise, the change initiatives will always be viewed as
managements and likely will be quickly abandoned with a change in
leadership.
Address performance deficiencies first by assessing whether
employees can reasonably be expected to understand where they get
their work, what they are to do with it, where it goes, and why
(input-throughputoutput). If inappropriate conduct is the problem,
assess first whether the conduct is driven by the internal work
environment (frustration or interpersonal conflict) or has an
external cause.
The salient question is whether management has implemented change
in a manner that can be successfully digested by the workforce. If
change has been superimposed, even by necessity, patient leadership
can ensure it permeates through the workforce, particularly to
those employees who may not be comfortable with change or take
longer to learn new skills and methods.
Have I Established a Positive Work Climate?
Treating employees consistently and not playing favorites (equity
theory), establishing clear goals and providing the infrastructure
in which employees can excel (expectancy theory), and recognizing
positive accomplishments (reinforcement theory) when coupled with a
coherent implementation strategy for change creates a positive
environment in which conduct and performance problems can then be
attributed to the individual employee and are clearly not
indicative of larger problems attributable to management
deficiencies.
Do I Understand the Group Norm?
Supervisors, particularly new ones, want to make a good impression
on their superiors. It does not take much time to develop an
impression as to how much time the workforce is spending doing its
job. If the organization is not as fully productive due to process
and technology deficiencies, managementas the process ownermust
correct the issue. However, if the organization is not meeting
performance expectations, a systemic deficiency cannot be
identified, and particularly if other workgroups with a similar
mission seem to be able to meet performance expectations with the
same resources, then the issue may well be employee perceptions of
what constitutes a good days work, the accepted group norm.
While individual performance and conduct issues vary significantly,
step one is to ensure managements house is in order. Not only does
such an assessment provide managers with perspective on their
leadership effectiveness, it also identifies potential issues that
may muddy the waters when conduct or performance-based actions are
initiated.
Addressing Conduct or Performance Problems
Once you have established an environment where you can expect
employees to perform satisfactorily and exhibit proper behavior,
you should prepare for individual conduct- or performance-based
actions. Accept that the process is often long, stressful, and
tedious. Begin counseling the employee and developing the
appropriate paperwork.
Prepare to Initiate Conduct- or Performance-Based Action
As soon as a potential problem is identified, meet with your human
resources representative. This liaison may start by asking whether
there may be an underlying chemical dependency or personal problem,
particularly if recent behaviors are atypical for a long-term
employee. The HR representative may recommend that you advise the
employee that counseling services are available through an employee
assistance program. HR also will advise that personal problems or
chemical dependency issues do not obviate conduct or performance
deficiencies, though they may affect final penalties to some
extent. Managers should always follow a consistent sequence of
actions for all their employees.
Do not assume it will pass, particularly if the emerging
performance issue indicates a poor match between the employee and
the position requirements. If the employee is not really qualified
to do the work and accepts that fact, an alternate placement can
create a win-win for both the employee and the organization.
Conduct problems need to be addressed quickly, firmly, and
positively. Too often supervisors view conduct problems as isolated
instances and fail to provide informal oral and written warnings,
and then want to immediately initiate suspension or removal action
as a first offense.
Address It as a Management, Not Personal, Issue
When the supervisor has a shared history or a social relationship
with the employee, taking personnel actions can be particularly
difficult. Nevertheless, if managers treat those employees
differently or give them more chances than other employees, they
will eventually create perceptions of favoritism within the work
group.
These actions often play out over weeks or months. They are
stressful, particularly if you are a leader who enjoys working in a
collaborative team setting and does not enjoy giving orders or
directing others.
Document
Keep notes on every instance and discussion of deficient behaviors
and performance. Just remember that employees and their
representatives will have access to these notes!
Implementing the Action
Supervisors must thoroughly document that they have followed
established steps and the advice of trained employee relations
staff if they are to see these actions through to appropriate
completion. While civil service protection and procedures vary by
jurisdiction, they likely will be similar to federal requirements.
Addressing Misconduct
In cases of misconduct, employee relations staff will advise
supervisors to take progressive disciplinefrom oral warnings to
written warnings, reprimands, and perhaps a series of suspensions.
Until and unless the employee corrects the conduct, the supervisor
has built a case that the only logical alternative is termination.
Preponderance of evidence is one legal standard for proving an
agencys case.
Merit Systems Protection Board in Douglas vs. Veterans
Administration (5 MSPR 280) outlined criteria federal
supervisors should use to determine the penalty to be imposed for
employee misconduct. Agency employee
relations staff will use these Douglas factors to determine
appropriate discipline; they also will be considered by third
parties in reviewing the actions taken by an agency (See sidebar).
Standards of Evidence
Just as the federal government has different laws for taking
performance-based action, the standards of evidence for these cases
are also different. Performance-based actions must meet the legal
standard of substantial evidence, which is lower than the
preponderance of the evidence standard.
The U.S. Office of Personnel Management provides extensive guidance
on taking performance-based action. In Addressing and Resolving
Performance Problems: A Guide for Supervisors, ( January 1998), OPM
outlines a three-step process of communicating expectations and
performance problems, providing an opportunity to improve, and
taking action.
Trial periods where employees typically have one year to
demonstrate their ability to do the work and adjust to government
operational cultures help ensure that employees with performance
and behavioral problems are not brought into the permanent
workforce. There are no easy fixes when dealing with long-term
civil service employees. Unlike misconduct, which may involve a
single issue or incident, performance-based action is typically
indicated when an employee demonstrates a long-standing pattern of
deficiencies. Unfortunately, deficient performance may have been
the norm for years, as the employee regards the performance as
adequate, often documented by repeat performance ratings of
satisfactory or above. When a supervisor (particularly a new
supervisor) begins to counsel the employee about deficient
performance, it is common for the employee to assume it is the
supervisor who is the problem.
It becomes particularly difficult if an individuals deficient
performance is not markedly more deficient than that of other
employees. Before initiating performance-based discipline, a
supervisor must first ensure that employees are clear about
standards for accomplishing their work and understand they are
personally accountable for productive use of their time. If a
performance-based action appears to be an attempt by a new
supervisor to attack a long-established group norm of performance,
an unintended consequence of taking the action may be to alienate
the entire group.
On the other hand, if performance standards are clear and the group
norms of performance are high or rising, staff, managers, and team
leaders will let the supervisor know that the group feels it is
being held back by one or more non-performers. A supervisor who has
already begun working with the employee relations staff to document
performance issues may find that staff teams raise the issues
around the same time the supervisor planned to initiate the
counseling process with the deficient employee(s).
Moving Forward
Supervisors who are confident in taking conduct- or
performance-based actions have made every reasonable effort to
establish a work environment in which employees can excel. They
document that inappropriate conduct or deficient performance has
been made known to the employee and is within the employees control
to correct.
These supervisors likewise follow the law and agency administrative
regulations in documenting their actions and offering opportunities
to improve. Establishing and documenting each methodical step in
the process provides reviewing authorities with clear evidence that
management has made every reasonable effort to comply with law and
regulations and has exhausted options other than the penalties
proposed.
--------------------------------------------------
Douglas Factors for Discipline