Simplifying the firing process: making better and more frequent use of EAPs and streamlining the process for terminating poor performers would help make the federal government more efficient and effective.

Back in the 1980s, the Harvard Business Review published an article that discussed the reasons private companies tire employees. The most common reason given was inefficiency or low productivity. The federal government, on the other hand, publishes statistics showing that only about 1 percent of the employees who are terminated each year are fired for poor performance. By far the most prevalent reason for termination in the federal government is misconduct, and the most common alleged form of misconduct is leave abuse.

Poor performance is way down the list of reasons that federal workers are fired, and I think most of my colleagues would agree with me that it's because of the process. The regulations for dealing with poor performers are so cumbersome and take so much time that many supervisors choose not to do it. They'd rather let a minimal performer hang around than have to put all their effort into initiating and following through on a performance-based action. Misconduct actions can be taken much more quickly and easily than performance actions.

I speak to federal supervisors all over the country about poor performers, and I often tell them that if they have a bad performer on their hands, the best thing that can happen is for that employee to punch them out. If you hit your supervisor, you can be fired in about 30 days, but if you're a poor performer, it can take much, much longer.

I also ask supervisors whether they've ever been involved in a performance based removal, and usually a few hands will go up--say, one or two out of 15 attendees. Then I ask how long it took from the day they said to themselves, "That guy has to go," to the day he actually was fired, and the most common answer I receive is one year. The real heartbreak is that it's not just one year on the calendar, it's one year of coming to work every day and having to deal with something related to the action being taken to remove this bad worker.

For what it's worth, the 1978 law that establishes the procedures for terminating federal employees states that managers have a lower burden of proof when firing someone for poor performance than for misconduct. You have to have a preponderance of evidence to fire someone for misconduct, but you only have to have substantial evidence to tire someone for poor performance. Performance removals should be easier to prove because there's a lower burden of proof, but attorneys who work on these cases would argue that the reverse is true.

QUESTION AND ATTACK

Firing a federal worker for misconduct is somewhat straightforward. I come into the office and punch out my supervisor, and the next day I gel a letter proposing my removal. I contest the letter, and 31 days from now I get a decision that says yes of no.

A performance removal, on the other hand, requires an improvement plan. The law requires that if you decide I'm a poor performer, you have to give me a performance improvement plan (PIP) referencing the performance standard I'm failing to meet.

For example, if one of my performance standards is that I have to produce three reports each week but I'm only preparing one of two, you can give me a PIP stating that I'm failing to meet this standard. Then you have to allow me a reasonable period of time to demonstrate whether I can produce three reports each week.

One of the unfortunate aspects of this process is that different people can construe the phrase "reasonable period" to mean different things. What you consider reasonable and what I consider reasonable may be months apart. Most federal agencies--and when I teach managers about this I try to get them to take a different approach allow 30 or 60 or even 90 days for people to demonstrate they can improve their performance. The law doesn't require this much time; it's simply what managers and agencies often permit.

In our hypothetical case, you would put me on an improvement plan, and al the end of 60 or 90 days you would evaluate my performance during the improvement period to see if I'm now meeting my standard. If the answer is no, you must, by law, remove me from my job. You can tire me or demote me to a lower position, but the statute is explicit that someone who is not performing acceptably has to be removed from his/her job.

The reality of this process--and I didn't fully appreciate this until I started working for the Merit Systems Protection Board (MSPB), the federal agency that adjudicates appeals of personnel actions such as terminations, suspensions, and demotions--is that if you give me a 90day improvement period, you have to document each time that I rail to do something according to the plan. You have to do this each week for each standard. The upshot is that if I decide to appeal my firing, there will be much more for me to question and attack. I'm going to argue with you about everything you said I didn't do correctly each day and each week. I may argue that you didn't provide mi with enough resources to do my job, or that you didn't explain things to me properly.

When I worked at the MSPB, files of cases under appeal would be brought into my office, and pretty soon I started to recognize the performance removals. The misconduct removals would be in an 8-1/2" x 11" file folder that might be four or five inches thick. The performance removals arrived in boxes, with thousands of pages of documentation. The bottom line is that, to practice, it takes months and months to remove a poor performer.

BETTER USE OF EAPS

Partly because of this onerous removal process, federal supervisors have every incentive to help poor performers produce. In the late 1980s, the MSPB conducted a survey of federal managers, asking them what tools they used in dealing with poor performers and how often tire tools were effective. The tools mentioned were coaching, counseling (which would include using an EAP, though the survey didn't single out EAPs specifically), mentoring, training, and placing an employee in a formal improvement period. The most effective tool, according to managers, was placing someone in a formal improvement period, but it was seen to be effective only about 30 percent of the time.

Referring poor performers to the EAP was not, in my front-line experience, a routine occurrence. Supervisors usually would only refer employees to EAPs if they saw some sort of behavior they believed an EAP would address. The most common problem I saw in the 1980s was alcohol, but I think EAPs can help with more subtle problems such as family and financial issues. A sophisticated supervisor might refer a poor performer to an EAP right away, but a lot of front-line supervisors aren't at that point.

I'm currently writing a book of standardized letters that supervisors can use with poor performers. Throughout the federal government, when a supervisor wants to initiate a removal action or put someone on an improvement plan, s/he has to create a letter out of whole cloth--there's no template you can pull off the shelf that provides boilerplate language. I'm routinely including a paragraph in these letters that talks about seeking help for personal problems, and it provides space to add the name and phone number of the EAP.

Both from my own managerial experience and from a legal standpoint, providing information about an EAP is a good thing to do. As a manager, I know that replacing someone is a lengthy and expensive process, so it's best to try to save the workers you have; as an attorney, I'm always concerned about how well cases will stand up on appeal. The earlier any personal problems can be flushed out, the more expediently the supervisor and worker can address them and the less likely any surprises will surface if a termination is conducted and later appealed.

In addition to making more and better use of EAPs, I think a critical aspect of improving performance in the federal workforce is to make it easier to tire poor performers. There are three reasons for this. Number one, if you have a poor performer, he's simply taking $50,000 every year for his salary and he's not giving hack $50,000 worth of work to the government. So you want to get rid of him because of his own shortcomings.

The second reason to make it easier to tire a poor performer is because of what he does to the rest of the workforce. He affects his co-workers in two ways, both of them bad. First, other people who are good workers look at this guy and realize he's making just as much money as they are (and maybe more) but not doing any work. Consciously of subconsciously it says to them that they don't have to work as hard as they could, and if they don't work hard nothing will happen to them. The other group of workers it speaks to is the borderline poor performers who are trying to get up to speed but who look at this guy and figure that he's getting by so they can get by, too. A poor performer demoralizes employees who might otherwise be stars in an organization and reinforces to the mediocre employees that it's acceptable to be mediocre.

The third reason to make it easier to tire poor performers is because of the adverse effect on managers. Managers feel the system binds them up and prevents them from doing anything creative to make the government a more effective and efficient place to work. That's not to say there aren't good agencies doing good work, but when you have a poor performer in your unit, it brings everyone else down.

WIGGLE ROOM

Making it easier to fire poor performers does not, in my opinion, require any change in the law. The performance improvement period is a creation of the Office of Personnel Management, the personnel office for the entire federal government, based on its reading of one sentence in the regulations. I personally don't think a PIP is required--if you give someone a performance standard, that person should know what's expected of him or her in a few months. I believe that if you have a poor performer, you can simply do away with the improvement period.

If you don't want to do something that drastic, the easy thing to do is define the word "reasonable" much more stringently and never establish an improvement period of as long as 90 or even 60 days. One of the first people I ever fired was a guy whose job was to change tires on government vehicles. You don't have to watch someone for three months to figure out whether he can change a tire, and there's no obligation that you use this period to train the person. This is a period of evaluation.

Federal agencies could start using shorter PIPs tomorrow. The shortest one I've ever seen was about 17 days, and the courts said that was okay. The only PIP ever reversed because it was too short was three days. There's a lot of wiggle room in there. Federal agencies need to realize they can shorten performance improvement periods and put the onus on employees to say they aren't being given enough time.

Another step federal agencies could take is to encourage human resources personnel to get out of their offices and talk to line managers on a more proactive basis. Too often, an employee relations specialist is sitting in his office and a manager comes over in a huff and says, "I can't take it any more, this guy's been a jerk for three years and I want to tire him." It's now day one of the termination process, and the manager is already red up with the employee.

Employee relations specialists need to sit down with managers on a regular basis and ask them if everything is going well and whether they're having any problems. At that point, a supervisor could mention that a new employee isn't coming to work on time or getting his work done. The employee relations specialist could discuss the manager's options, including mentioning the EAP If employee relations professionals would do more of this on the front end, it would prevent a lot of small problems from becoming big problems.

A third step would be to put the implementing documentation in place more quickly in situations where a manager is initiating a performance-based action. If a supervisor has a bad performer and wants to put him on a PIP the employee ought to have the PIP letter in his hands two hours later rather than two weeks or two months later. When I speak to human resources professionals, I tell them that helping supervisors get performance actions started quickly is probably the single most important thing they can do. They think they need to know the law, and certainly that's important. But on a day-to-day basis, getting performance actions started quickly would go a long way toward removing problem employees.

Another thing I think managers could do is provide options for bad performers. For example, a manager could say, "You're not doing your job, so I'm firing you. Or, how would you like 30 days to look for another job, and I'll pay your salary for the full 30 days, provided you agree to leave your job at the end of 30 days regardless of whether you've found another job?" Rather than using a one-size-fits-all approach to terminating poor performers, managers can cut a deal with them. After all, if you're a supervisor and you've been paying a poor performer for months or years while you've been using all your skills to try to bring him of her up to speed, what's one more month of salary?

In human resources vernacular we call this a "last rites" meeting, and a more frequent use of such meetings would be advantageous for managers and employees as well. I can't tell you how many calls I get from people who are bitter and angry and have been fighting the system for years and can't wait to have their day in court because they know they're right and the boss is wrong. I listen to them and I realize it's just killing them--their life is consumed by this belief that they've been wronged and they need to fix it. Sometimes offering to help people find new jobs will help them get on with their lives, and help their managers and co-workers move ahead as well.

"The overwhelming attitude among our respondents was that their agencies are not doing a very good job of handling performance problems. Interestingly, there was very high agreement on this issue at all levels of the organization:

* Forty-four percent of non-supervisory employees, 43 percent of first-level supervisors, and 43 percent of second-level and higher supervisors thought that their organizations have a major problem in being willing or able to correct inadequate performance.

* Fifty-one percent of non-supervisory employees, 59 percent of first-level supervisors, and 59 percent of second-level and higher supervisors believed that their organizations are unsuccessful at separating poor performers.

Our negative findings for supervisory employees concerning separating poor performers is corroborated by a previous MSPB study ("Removing Poor Performers in the Federal Service," Issue Paper, September 1995) which found that federal supervisors believe they face many obstacles in dealing with employees who are performing poorly, and often feel frustrated in being able to separate poor performers."

--"Adherence to the Merit Principles in the Workplace: Federal Employees' Views," U.S. Merit Systems Protection Board, September 1997.

William Wiley is a federal employment law attorney who has served as chief staff to the general counsel of the Federal Labor Relations Authority and as chief counsel to three members of the U,S. Merit Systems Protection Board, He is the author of How to Fire a Federal Employee and How to Defend a Federal Employee. He can be reached by telephone at [phone] and by e-mail at [e-mail]