Author Archives: FedSmith

Reconfiguring Discipline: Memos, Meetings and Money

Have you ever had a coworker who spent more time/energy avoiding work than actually working?  How about an employee who behaved like a teenager, occupying the body of an adult?  In my experience, these people represent a small percentage of the Federal workforce.  Their attitudes and conduct, however, can result in consequences agencies cannot afford in this era of shrinking and uncertain budgets.  This was the subject of an earlier article.

Most employees who break workplace rules do so willfully.  I called in sick and went fishing – behavior that was adolescent, at best.  I could have rationalized my actions any number of ways but I was lying to my supervisor when I called in.  Discipline is for the student who cuts class, the housekeeper who steals cash, and the accountant who backdates forms.

My bad habit ended the first time a supervisor confronted me regarding my leave usage.  I had been a monthly offender for over a year by then.  In retrospect, it’s noteworthy how two previous supervisors must have suspected me but never took the step to confront.

How many switches does it take to turn on the lights?

Some employees are less susceptible to shaming.  Their misbehavior persists… and coworkers know it.  They wait for leadership to recognize and confront behavior issues.  Sometimes they give up hope, as their supervisor seems to avoid the issue(s).

Once their leader decides to act, the process recommended by HR may seem interminable.  Among most of my clients, a typical pattern of discipline for continued minor offenses looks something like this:

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

In such environments, the time it takes to reach a conclusion (changed behavior, resignation, transfer, or removal) can run well over a year.  The glacial, bureaucratic process that follows the time it takes to overcome management inertia is costing agencies lots of money on several fronts.

These are the good old days

The Federal HR regulations for correcting behavior problems were designed decades before my (1974) entry into the workforce.  They reflect an era when offices rang with the sound of clicking typewriters.  These regs come from a government without desktop computers.  There were few unions and no EEOC or MSPB.

The only disciplinary actions mentioned in our Code of Federal Regulations (5 CFR 752 – titled “Adverse Actions) are suspensions, reductions in grade, and removals.  Letters of Warning, Caution, Reprimand, Counseling, etc. do not stem from government-wide regulations.  The silly requirements to expunge such documentation after ½ – 3 years are also absent.  (The National Guard Bureau actually requires GS/WS supervisors to document counseling sessions on a special form… in pencil… and to erase such entries after a few months!  In what decade was that written?)

In the era of their invention, receiving a memo with your name in the “To:” line required drafts and clerks to type them.  Either you had done something very good or very bad.  Given the e-mails and text messaging of today’s workplace, however, such memos evoke little interest or attention.

But there’s more news from the 21st century.  Most disciplinary actions are grievable or can be challenged with EEO complaints.  Specialists prepare these memoranda with litigation in mind.  As many readers know, administrative hearings often focus more on trivial matters pertaining to the memo than the misconduct of the individual whose name it bears.  Litigating a Letter of Warning or Reprimand can prove an onerous task.  Meanwhile, hard working coworkers grow impatient.

Elevating the sit-down

As I read case law, judges look for “clear notice” from management to an employee regarding behavior issues.  A well-documented, face-to-face confrontation often satisfies that standard.  Moreover, a personal meeting may prove more effective than a template-conforming memo.  For the remainder of this article, I’ll call such meetings “sit-downs”.

The sit-down goes by many names such as: “disciplinary counseling”; “oral admonishment”; “verbal reprimand”; “reading the riot act”; “verbal warning”; etc.  They are all essentially the same.  Instead of typing the supervisor’s displeasure into some pre-existing format, that leader says what s/he means – with minimal reliance on intermediaries like Administrative Officers, HR Specialists, attorneys, etc.

How can a supervisor successfully sit down with an employee in an attempt to correct their behavior?  I have several suggestions:

  1. When confronting an employee regarding their conduct, be aware that the employee doesn’t have a legal right to representation.  No questions are being asked or investigation conducted here, therefore the representation right commonly referred to as “Weingarten” doesn’t apply.  I don’t, however, object to a representative’s attendance if it’s useful.  A union steward may help the employee take in what’s being said and reduce the likelihood of defensive responses to criticism.  Bottom line – if the supervisor doesn’t want a union representative in this meeting, there’s no requirement to invite one.
  2. I have learned that supervisors will inevitably employ their individual communication styles in such meetings.  The government’s workforce is diverse and so is leadership.  Most supervisors are averse to confrontation and uncomfortable.  My advice is simple – be yourself.  Most of us look silly when we try to be calm and reasonable and we’re neither.  Personal honesty is more often rewarded than punished.
  3. Have a few talking points written down.  The supervisor should avoid leaving the room unsure if all matters regarding the employee’s conduct were covered.  It would be appropriate and smart to have these topics agreed upon by the next level of management.  One essential talking point should be the supervisor’s expectations for future conduct.
  4. It is important to mention the effect of the employee’s behavior on leadership and coworkers.  Statements like the following often help an employee understand the impact of their deportment: “I have problems trusting you.” or “Your coworkers are frustrated but don’t want to report that you’re missing from the jobsite.” or “I’m tired of arguing with you.”
  5. If the employee challenges what’s been said (by arguing or denying), try refocusing on the present and future, rather than debating the past.  The objective of this meeting is to ensure the misconduct doesn’t recur in weeks/months to come.  One example might be, “Whether my version of events is accurate or not, I’m hoping you agree with the concept of 80 hours of work for 80 hours of pay.”  Seek agreements/understandings regarding future behavior.
  6. People ask if it’s wise to tape such an encounter.  I discourage doing so for several reasons.  The main one is this:  When a recording device is present, people tend to speak to the machine rather than each other.
  7. A note taker can be present.  Given the awkward nature of the conversation, it’s difficult for a supervisor to think of what to say, listen to the employee, and take notes.  A fellow supervisor, HR person, or administrative employee can be there to do so.  The supervisor can simply say, “Ralph is here only to take notes.  After we’re done, I’ll give you a copy of his notes.  Ralph, please don’t tell anyone outside this room what you have heard.”  Thereafter, the note taker becomes almost invisible.
  8. Alternatively, wait until you’ve said what needs saying and then summarize it in writing before the employee returns to work.  This can seem awkward and time consuming; however, having a single version of what was said behind closed doors can prove important.  Assuming civility, the employee should be allowed to review the supervisor’s characterization of the discussion and given a copy.  This isn’t a game and there needn’t be secret or confidential documents.  As I often say in my seminars, “Management should play its cards face-up.”

Considering the advantages

Thoughtfully designed and executed sit-downs can be used in lieu of more formal disciplinary actions.  If one or two steps can be eliminated from the tedious process of progressive discipline, the potential savings may amount to tens thousands of now-precious dollars.  A new disciplinary pattern that could substitute for the one shown above might look like this:

Sit-down

Reprimand

Sit-down

5-day suspension

Sit-down

14-day suspension

Removal

Some union officials will look at this example and find it akin to workplace Fascism.  Frustrated leaders will probably view it as only slightly less complex and time-consuming than the arcane progression initially described.  Most significantly, attorneys and HR advisors are likely to continue on an unchanged path, believing that discipline must progress ever-upward in severity.

“Progressive discipline” needn’t mean unwavering escalation.  As I read through the landmark Merit Systems Protection Board decision in Douglas et.al. v. Veterans Administration et.al. and similar cases, I found the Board accepting varying disciplinary patterns (including sit-downs) as long as the appellant was clearly advised regarding their misconduct and future expectations.

Risk and reward 

Rethinking the government’s disciplinary practices should include mediated agreements re: future conduct and paper suspensions in addition to greater reliance on sit-downs.  This will prove challenging for attorneys and specialists who have less tolerance for risk and change.  Moreover, the Office of Personnel Management (OPM) has let disciplinary policies and practices lie fallow since anyone living can remember!  …and shows no signs of wanting to change their ancient regulations.

Any risk associated with implementing such minor changes will likely be outweighed by cost savings on several fronts.  Disciplinary memoranda and suspensions commonly provoke grievances and EEO complaints.  Federal Executive Boards have been advised by OPM that resolving an EEO “pre-complaint” saves an agency approximately $72,000 on average.  Add to that the costs of processing grievances and the morale problems among supervisors being investigated and put on the defensive during the course of such adversarial processes.

The savings realized by substituting a sit-down or two for traditional disciplinary actions is in everyone’s interest, especially the employee’s.  The sit-down promotes dialogue and common understanding rather than legalistic charges, tables of penalties, due process protocols, Official Personnel Folders, Douglas Factors, and burdens of proof.

The Federal government’s disciplinary regulations and procedures are outdated and ineffectual when compared to modern HR practices outside Uncle Sam’s household.  We focus excessive time and energy debating and litigating past misconduct, rather than setting clear expectations for the future… and holding employee’s to them.  If an individual lacks the discretion or maturity to remain in government service, leadership should be allowed to confront them as adults and expect change and termination of employment if it’s not forthcoming.  Inertia is no longer an option.

© 2013 Robbie Kunreuther. All rights reserved. This article may not be reproduced without express written consent from Robbie Kunreuther.

Labor Relations

Robbie Kunreuther has helped clients form labor-management partnerships/forums that have endured for more than a decade. His clients know that the adversarial systems from 5 USC Chapter 71 are available, yet choose to invest in communication and cooperation rather than grievances and unfair labor practice charges. Robbie has also facilitated collective bargaining agreement negotiations which allowed the parties to move through issues faster and with greater clarity.

Once a Labor Relations Specialist who negotiated with and litigated against unions, Robbie has come to appreciate the fact that labor-management cooperation saves money. Understanding Federal Labor Relations covers labor law as supervisors, managers, union officials actually use it. From the statutory rights of management, union and employees to topics like conditions of employment, formal discussions, and unfair labor practices this seminar seeks to be more pragmatic than legalistic.

Most clients have Robbie present Understanding Federal Labor Relations to audiences from both sides of the table – something he’s been doing since the late 1980s. GPS also has off-the-shelf seminars that cover the particulars of labor management partnerships/forums and interest-based bargaining. Robbie ensures that folks have fun while learning how labor law looks at ground level. If it’s your agency invested in training that brings union and management closer together, consider GPS.

Repeating the Same Mistakes: Does HR Understand Performance Appraisal?

The Merit Systems Protection Board (MSPB) recently overturned the removal of a Department of Defense (DoD) employee for unacceptable performance.  The reason was all too familiar to those of us who have worked in the area of Federal performance evaluations over the past 20-30 years.  The agency, the Defense Security Service (DSS), failed to adequately inform its employee, Larry Van Prichard, of the difference between unacceptable and marginal performance as it pursued his eventual removal.

In an earlier FedSmith column, I was very critical of another performance case that resulted in a reversal by the MSPB due to a technicality. There, the issue dissected was Office of Personnel Management (OPM) approval of an agency’s appraisal system. Here is another case where a procedural issue trumped that of the employee’s performance.  In Van Prichard v. Department of Defense, however, I’m much less critical of the Board whose opinion seems thorough and well-reasoned.

Oops, what I meant to say was…

From the Board’s decision, it appears as if DSS put Mr. Van Prichard on a performance improvement plan (PIP) due to genuine concerns about his competence to do the job he occupies. The agency’s undoing can be traced back to the beginning of their process. Mr. Van Prichard received a “Notification of Unacceptable Performance and Opportunity to Improve” which specified his failings and what improvements were needed for him to reach the Fully Successful level of performance.…and there’s where they made (and compounded) their error.

Like so many Federal agencies, DSS has a five-level appraisal system.  In this case, the bottom two levels are Marginal and Unacceptable.  In the context of school, if unacceptable performance is considered failing, then marginal performance (a “D”) is passing. If appellant had been told what it took to reach the safe haven of Marginal rather than Fully Successful, it appears as if DSS would have prevailed in this case.

When the Merit Board never gets to the merits

Does this case serve as an example of bad advice from human resources and their legal counsel, management incompetence, or system design failure?  Perhaps the answer is all three. My concern is primarily focused on the repeated failing of Federal agency appraisal systems to achieve clarity. I don’t root for one side or the other in such matters. My concern is that such cases are decided on their merits, rather than procedural issues, as is the case here.

Over the 30+ years since I began my career in Federal personnel, agencies have stumbled over the notion of “minimal” or “marginal” performance time and again. In case after case, an absent or poorly written marginal standard has repeatedly invalidated hundreds of supervisory, legal, and HR work hours devoted to proving a Fed to be an unacceptable performer. When people keep tripping over a crack in the sidewalk, it’s time to acknowledge that the sidewalk may be more at fault than the pedestrians.

It’s the same old song

Eliminating this “D” level of performance was addressed in an article I posted to this site years ago titledUnmasking the Marginal Employee. Fellow FedSmith contributor Steve Oppermann also addressed the difficulties attendant to the minimal performance level in his piece titled When Mediocre is Good Enough. We’re still waiting on OPM and most Chief Human Capital Officers to catch up with our simple logic. I can’t imagine the press, politicians or public objecting to DoD abandoning the notion that demonstrating marginal or minimally acceptable performance can save a Fed’s job.

The problem that DSS encountered in this case also rested in their definition of minimal performance…or the lack thereof. While it may be subpar, it’s not failing. So how does one write standards to describe marginal performance?  Over the course of many years (and many MSPB and court decisions), we in HR should have learned that written minimal/marginal performance standards can be interpreted as “backwards” and invalidate hundreds of hours invested in a performance case.

Back to the backwards standards

Invalid minimally acceptable standards are the result of attempts to describe how bad one has to be to earn a minimally acceptable rating. Below is an example from the Departments of Interior’s “Benchmark Standards” describing “Minimally Successful” performance?

The employee’s performance shows serious deficiencies that requires [sic] correction. The employee’s work frequently needs revision or adjustments to meet a minimally successful level. All assignments are completed, but often require assistance from supervisor and/or peers. Organizational goals and objectives are met only as a result of close supervision. On one or more occasions, important work requires unusually close supervision to meet organizational goals or needs so much revision that deadlines were missed or imperiled.

Employee shows a lack of awareness of policy implications or assignments; inappropriate or incomplete use of programs or services; circumvention of established procedures, resulting in unnecessary expenditure of time or money; reluctance to accept responsibility; disorganization in carrying out assignments; incomplete understanding of one or more important areas of the field of work; unreliable methods for completing assignments; lack of clarity in writing and speaking; and/or failure to promote team spirit.

If that leads a reader to consider the lowest performing Federal coworker they have ever fantasized, problems are sure to result. This was Interior’s Minimally Successful standard. In the Bureau of Indian Affairs, National Park Service, Bureau of Land Management, or Fish and Wildlife Service, you’re coworker had to be worse than this to be put on a Performance Improvement Plan (PIP) and removed.  It’s backwards” – a term used by the US Court of Appeals way back in 1988 (Eibel v. Navy, 857 F.2d 1439).

What’s worse than “worse?”

Interior recently abandoned their benchmark for Minimally Successful performance without a substitution. That puts them in the same boat as the Defense Security Services in this recent MSPB case – having an unwritten minimal performance standard. In Van Prichard, the MSPB noted that DSS had only the most oblique reference to marginal performance in its performance appraisal directive. It was found in the “Definitions” section. The pertinent part reads:

“…less than Fully Successful and supervisory guidance and assistance are more than normally required. To be rated Marginal, any of the Critical Elements are rated ‘Marginal’ and no elements are rated ‘Unacceptable.’”

The only thing clear from this “definition” is that Marginal is less than Fully Successful, and marginal employees require more supervision. Technically, this is an “open-ended” standard, which is inappropriate to have at the “D” level.  HR specialists should know this and be on the lookout for transgressions. In this case, they (or some consultant) probably wrote it.

The definition/standard doesn’t define how much of this guidance and assistance tilts the scales to render the offender unacceptable, or an “F”.  If two hours/day of guidance is more than normal, then so is six hours/day.  It’s analogous to telling a student that a “D” is a passing grade representing an average grade below 70%.  Really?  How about 53%… or 27%?  An open-ended marginal standard (having an upper, but no lower limit) is commonly toxic when attempting to prove unacceptable performance.

The consternation of extrapolation

Compounding their problems, the Defense Security Service only required that the Fully Successful performance be defined in writing. This is a common feature of many four and five-level appraisal programs. If the only performance standard in writing is Fully Successful, however, it is impossible to distinguish between marginal and unacceptable. By analogy, if all you know is that a “C” ranges from 70 to 79%, what is an “A”… or an “F?”

This conundrum has resulted in judicial reversals over the course of 3 decades. DSS can now be added to a long list of managers and HR specialists whose cases failed over such a basic issue. Before the government fires someone for unacceptable performance, that employee should be given a clear picture of the difference between passing and failing. In the early 1980s, we were told by OPM that “extrapolating two levels” (up or down) renders an appraisal invalid. Decades later, confusion is still out there. DSS is not alone.

Forests and trees

For evaluations to be more than just a “necessary evil,” the Federal HR community needs to consider where and how they contribute or save real dollars. From where I sit, it seems we have lost sight of both the fundamental purpose and basic design of our performance appraisal system.

The Purpose: To enhance and improve mission accomplishment by motivating individual employees to perform more effectively and efficiently, and removing those who cannot be motivated to succeed.

The Design: Critical elements are what we rate.  Performance standards are the yardsticks by which elements are rated.

At a time when lots consultants and human capitalists want to tie salary increases to appraisals (as if there were any money available for salary increases!), we continue to see cases where managers still cannot distinguish between passing and failing. Differentiating among good, better, and best employees is even more of a crap shoot. Various agency appraisal directives call for critical and non-critical elements, mandatory elements, sub-elements, generic performance standards, unwritten standards, GPRA tie-ins, and burdensome justifications if one tries to rate an employee toward the top of the scale.  Complications lead to confusion, which leads to pre-determined distributions, favoritism, and other non-merit practices – all of which tells us that something’s broken and HR doesn’t seem to know how it should be fixed.

Ideas for avoiding such problems while focusing on the purpose of performance appraisals will be examined in a follow-on piece to be posted soon. For now, Mr. Prichard is back to work – hopefully demonstrating his competence to do the job. Whether the Department of Defense will eliminate the minimal or marginal performance level that exists in the evaluation systems for many of their component agencies remains to be seen.

I’m not holding my breath.

How HR Should View ‘Critical Elements’

A horizon beyond compliance

My orientation in writing this article about critical elements comes from a perspective many Feds may find mystifying. I believe appraisals should serve to improve performance, not just rate it.

Most who work in human resources know that the United States Code and the Code of Federal Regulations demand we evaluate employee performance using “critical elements” and “performance standards”. Very few, however, view appraisals as more than a necessary evil.

As mentioned in an earlier article this compliance-only view of appraisals has resulted in a paucity of expertise in evaluations and some costly mistakes. Most in my field of labor/employee relations have little training or interest in this area that has confounded and vexed us for decades. I have often referred to the appraisal program as the “third rail of HR”.

Over the three decades since critical elements and performance standards arrived on the Federal landscape, I’ve seen our appraisal system used as a prop for those advocating “Management by Objectives”; believers in “Total Quality Management”; peddlers of “Balanced Scorecards”; and those who are possessed by goals, objectives and strategic plans. Executives and consultants see elements and standards as a medium for advertising the latest fads in management.

Elements, standards, and report cards

Performance appraisals continue to interest me in part because they remind me of “report cards” of my youth and early adulthood. I wonder what net value they offer us as working adults. In other words, I believe that critical elements and standards should generate sufficient benefits to offset the meager costs (two conversations a year and a minimal amount of HR support/expertise) associated with the program.

Ratings, bell curves, and awards are of less interest to me than using elements and standards to improve individual performance – showing people how (and leading them to) become better at what they do. This begins with an understanding what elements and standards are… and are not. Critical elements are what we rate. Performance standards are the yardsticks by which elements are rated.

Comparing the government’s system to that used in school, elements equate to the subjects we were taking that year/semester, while standards were the measures our teachers (now supervisors) used to determine our grades. In my day, English, Math, Science, History, and Spanish were “major” subjects (now “critical” elements). They would be graded by standards connected to tests, homework, papers, etc.

“Non-critical” elements back in school might have been music or physical education. As many agencies now realize, they are an oxymoron in the adult workplace. Some, like the Department of Agriculture, have complicated rating schemes (each element is rated at three levels but the overall rating scheme has five tiers) that require non-critical elements. Such a requirement reflects a symptom of systemic problems that need fixing.

Generics in, garbage out

Over the past few years, many Federal agencies have moved toward generic elements. Their belief is that a common set of elements will ensure fairness, reduce conflicts and ensure local management doesn’t use differing elements for common positions. In doing so, however, HR policymakers are also ensuring that appraisal criteria (elements and standards) will not be used to motivate employees. Generic elements lead to generic perspectives of employee performance and subjective evaluations. It’s that simple.

Here’s how generics fail us. “Getting Along With Others” and “Teamwork” are essential to the success in any Federal agency. As critical elements, however, they invariably lead to generic, subjective performance standards. Here is the Fully Successful standard written for such an element by an agency client of mine:

“Actively contributes to the accomplishment of organizational and team goals, including adapting to shifts in work priorities. Shares information freely across levels and functions.”

The element and standard are required for all employees. Not only is there is no information as to how one exceeds or fails, such stuff is useless at best. A generic element has led to a generic standard. This will lead to subjective ratings anchored in the vaguest of impressions. The construct does not motivate anyone. More likely, it will engender perceptions of bias and manipulation.

The competence game

The agency in question professes to rate their employees in “competencies”. Other agencies have followed a similar route. Competencies are the talents and abilities we need to qualify for, and succeed in, a job or line of work. If you have a gift for seeing how mechanical objects work, certain careers are more likely to fit you competency. Likewise, if you’re lousy at memorization, a slew of careers are ill-suited due to your lacking this competency.

These competencies (a term that came into vogue in HR circles about 15 years ago) are not easily graded in an A – F type of system. It’s like grading a high school student in reading. A teacher may see the student does or doesn’t possess that competency, but can’t easily grade or rate it in a tiered system without sophisticated testing. Furthermore, that competency is not likely to change from year to year. Individual appraisals should focus on achievements rather than competencies.

Like generics, competency-based elements lead to subjective, “weasel-worded” standards despite professed commitments to objectivity, results, continuous improvement, etc. Supervisors and managers do the best they can, but they know their ratings are based on impressions.

Evaluating fractions

On yet another front HR should consider, the idea of dividing a critical element into “sub-elements” (a, b, c, etc.) presents problems that complement generics, but from an opposite direction. Here, HR (or others who call the shots in an agency) find that 3-7 critical elements aren’t enough. In using sub-elements, management attempts to evaluate every dimension of every element. Measures are added to other measures (whether objective or subjective) in an attempt to evaluate an employee’s performance in the most thorough way possible.

In a system of critical elements and performance standards, however, the notion of a sub-element is difficult to implement. By analogy, grading a student in sub-elements might divide “American History” into: 1) Wars; 2) Leaders; 3) Economics; 4) Social Movements; etc. Can’t we just rate American History (the broader critical element) and leave it at that?

Sub-elements create a dilemma for raters as well. What happens if I’m an A student in Wars and Social Movements, a B in Leaders, and a D in Economics? How am I to be graded in the overall subject (or critical element) of American History? Directives are often silent putting management at the mercy of third parties like the MSPB or EEOC.

I recently worked with an agency that has six specific measures in one of the three sub-elements that comprise Critical Element #1. (It was hard for me and their managers just to understand this construct which was handed down from HR.) I asked what happens if an employee fails one of the six measures but not the other five. According to law and regulation, failing a critical element results in a performance improvement plan and possible removal. They weren’t sure as to the answer, and their agency directive wasn’t clear.

I pointed out to them (HR didn’t attend the seminar) that failing one of six metrics, in one of three sub-elements, is tantamount to failing one-eighteenth of the critical element. If a sub-element’s standard contains six adjectival descriptions (most performance standards consist of “weasel words” rather than specific measures), the level of ambiguity would be even greater. While sub-elements attempt to illuminate, using them often leaves supervisors and employees in the dark.

Keep it simple… HR

The final issue relating to elements that I’ll address here is what I refer to as a “foam-at-the-mouth-element”. On these appraisal forms, HR advises management not only to tell the employee what will be rated, but also the skills, talents, tenacity, patience, teamwork, service, and intelligence needed to perform it. The critical element runs on for 5-10 lines of prose.

I want to remind those in HR who work with appraisals that element just tell employees what will be rated. The finest line we need to draw when committing them to paper is something like, “Negotiations – including team identification, training, research, ground rules, proposal development, bargaining, documentation, consulting with higher echelons, etc.” In my estimation, that’s a long one. Adding long sections from the PD to an element is unnecessary. It doesn’t impress anyone.

A call for job-related critical elements

Back when I was a Labor Relations Specialist with the Department of the Navy, I had just three critical elements:

Negotiating (with union officials);
Preparing and Presenting Cases (to be heard by third parties); and
Providing Guidance and Advice (to supervisors, managers, and others).
That’s what I was paid to do. It’s sensible to rate employees in those areas you are paying them to master.

The elements for a Senior Executive should be different from those of a Claims Representative. The executive is best evaluated in broad organizational categories. The employee is most effectively evaluated in specific job-related elements like Interviewing, Documenting Case Files, Eligibility Determinations, etc). The Executive’s effectiveness will profit more by getting Claims Reps to focus on such job-related elements than by their memorizing organizational goals and insisting that their critical elements be tied to them.

If appraisals are to help employees move from good to better to best, critical elements that promote agency-level goals like those associated with the Government Performance and Results Act (GPRA) are of little use. Consultants who can spout buzz words like artesian wells of wisdom will advise you to the contrary. I strongly suggest, however, focusing on what employees do day-in and day-out rather than lofty departmental ambitions.

A simple process leads to better elements

If we who work in human resources/capital can imagine appraisals that go beyond mere compliance, then critical elements should be tied to what that individual is paid to do. This can happen by using the following process:

List the duties contained in the PD (leaving factor evaluation statements out of it);
Add important duties that are not memorialized in the PD;
Review the list and put it out of sight – don’t peek;
Guess a set of broad critical elements;
Compare your elements to the original list, see which duties migrate to which elements, and edit your until you have a set of elements important enough to rate.
And all of these elements will be “critical” when applying to the definition contained in 5 CFR 430.203. A Federally-employed Nurse’s elements will once again relate to nursing, while an Engineer’s will reflect engineering. Employees will see that what’s to be evaluated is what they do every day. Some jobs may work out five critical elements and others to three. Such conclusions are considered “Management Rights” by the courts, so that’s just how the chips fall.

Once this simple process is finished, attention turns to performance standards. Stay tuned for an article addressing that (much more complex subject) in weeks to come.

Difficult Employees

Dealing with Performance and Conduct Issues is a two-day seminar which focuses on just 5-10% of a Federal agency’s workforce.  It offers supervisors, managers and union officials a look behind the HR curtain – showing how such problems can be successfully addressed.  This class moves from the traditional approaches involving reprimands, suspensions, and performance improvement plans to more modern methods like mediation, written requirements, and durable agreements.

Robbie Kunreuther had the unpleasant task of firing civil service employees whose performance or behavior couldn’t be corrected.  He understands why managers would rather avoid such traumatic decisions and how employees should be accountable for their own employment success or failure.  Dealing with Performance and Conduct Issues focuses on correcting the problem in the most practical time frame with the least amount of documentation.

Because these cases are so likely to result in litigation, the class covers how cases are won and lost when challenged.  Robbie represented the government before the Merit Systems Protection Board, labor arbitrators and the EEOC.  He explodes common myths, focuses on the possible, and explodes common myths – while focusing on a competent, hard-working majority that needs to be relieved of workplace distractions.

For agencies located in North America, Dealing with Performance and Conduct Issues costs $8,000 (inclusive of materials and expenses) for a group of up to 30 participants.  Classes in Hawaii and Guam cost $8,800.  This seminar results in huge cost savings if just 1-2 people attending leave with a plan they had never believed possible before coming.  Call or e-mail Robbie for a course agenda and other details.

Performance Appraisals

Performance Appraisal is the subject most supervisors, managers, and HR Specialists avoid like plague.  It seems as if all about forms, time frames, and limiting high ratings.  Meanwhile, supervisors have to manage a conversation which centers on judging people’s value and talent.  Government Personnel Services’ seminar Making Sense of Federal Performance Appraisals takes an approach to performance appraisals agencies won’t find elsewhere.  Robbie focuses on using “critical elements” and “performance standards” as a personalized way of communicating expectations of excellence and improvement.

Typically, appraisals focus on weasel-worded generics.  Expectations are couched in terms that mean little and influence no one.  GPS shows supervisors and managers how they can tailor performance elements and standards to individuals in ways that encourage them to new and better work habits.  Robbie believes that mediocre employees need to see and understand what they must do to become better, better to become best, and best to be challenged for years ahead.  In this way, the time devoted to appraisals will be considered and investment.

The Code of Federal Regulations tells agencies that, “…performance standard may include, but is not limited to, quality, quantity, timeliness, and manner of performance.”  GPS has found over decades that developing appraisal criteria using “manner of performance” as a guide can result in clearer communication, expectations that mean something, and (most of all) better individual performance in the coming year.

Feel free to contact Robbie for more information about the seminar Making Sense of Federal Performance Appraisals.  This seminar is taught in a 2 or 3-day format.  You can also request a course agenda and/or read some of his many articles on the subject by scanning the “Published Materials” page on this site.  No other training on evaluations is like it and none offer specific, step-by-step approaches to writing sensible appraisal criteria.

The First Commandment of Performance Appraisal

In my most recent article, I addressed the subject of critical elements.  These are the rating categories used in performance evaluation systems.  I pointed out how generic elements and elements that presume to rate competencies inevitably lead to subjective standards and ratings.  Such evaluations do not serve to improve performance and, therefore, are of no particular benefit to the agencies using them.  Moreover, rating these elements often leads to allegations of bias and favoritism.

In this article I want to discuss performance standards – the measures used to evaluate each critical element.  In doing so, readers can discover what I believe is a fundamental law of performance evaluations and the most common reason appraisals have failed us over decades.

Law, regulations, and generics

Standards are often referred to as “measures” or “yardsticks”.  They inform employees of the expectations to be met in a given element.  Our Office of Personnel Management (OPM) oversees the government’s performance appraisal system.  In the Code of Federal Regulations (5 CFR 430.203), they define performance standards as follows:

Performance standard means the management-approved expression of the performance threshold(s), requirement(s), or expectation(s) that must be met to be appraised at a particular level of performance. A performance standard may include, but is not limited to, quality, quantity, timeliness, and manner of performance.

The idea was to have individually written performance standards (or expectations) for each critical element.  This challenges managers to come up with specific measures for specific jobs under their leadership.  In fact, the law itself (5 USC 4302) reads, in part:

Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria (which may include the extent of courtesy demonstrated to the public) related to the job in question for each employee or position under the system…

This isn’t happening in most Federal agencies.  Many HR departments have devised “generic” or “benchmark” standards for rating purposes.  Their intent is to relieve supervisors of the chore of defining successful performance.  They also believe that providing everyone with the same rating elements and standards gives an appearance of fairness and equity… despite the legal mandate for objectivity.

Benchmarks and guesswork

Pre-written performance standards are intentionally vague so that they can be used by any supervisor for any critical element and any job government job – from Fork Lift Operators to Research Scientists.  Such “canned” standards inevitably lead to subjective ratings, which might have been the same had there been nothing at all in writing.

Most of the supervisors and managers I meet (from State, Navy, Agriculture, Interior, Army, etc.) are trying to rate their workforce fairly and accurately.  Despite good intentions, however, their ratings are based only on anecdotal evidence… and little of that in most cases.  The generic benchmarks encourage subjective evaluations.  Some agencies attempt to describe high, middle, and low levels of achievement; however, the language they use must be interpreted and applied by supervisors who are often baffled by it.

Standards as they were meant to be

In seminars, I ask managers, who are required to develop their own standards or supplement the generics with their own criteria, to consider the first three techniques offered up by OPM in the Code of Federal Regulations – quality, quantity, and timeliness.  These are the traditional outcome-based measures of performance that senior managers, consultants, and HR specialists continue to advocate.

I ask seminar participants (and now you) to think of all the ways a real supervisor would actually know if an employee is delivering quality, quantity and/or timeliness.  Examples of performance measurement techniques they suggest are:  supervisory inspection/observation; customer feedback; coworker feedback; review of logs; and returns/rework.  Of course there are more.

Take another moment to consider ways a supervisor could know if you or another employee is delivering results – quality, quantity and/or timeliness.  This is what management is supposed to do to have objective appraisals.

Note to HR specialists:  Something becomes noticeable during the course of this exercise – perhaps for the first time.  Quantity of work performed may prove utterly unreliable as a measure.  As managers try to come up with real-world measures for quantity, they commonly give up.

Quantity usually depends on external factors such as what other jobs are being assigned to the employee, how many requests for work come through the door or across an employee’s desk.  Moreover, different assignments have different levels of complexity.  This makes quantity measures particularly unreliable.

There is also the obvious connection between the quantity of work performed and the time it takes to perform it… and the more quantity and timeliness are stressed, the worse quality is likely to be.  As the old saying goes, “The faster I work, the behinder I get.”  Measuring outcomes has many implications that need to be considered by those who develop performance standards.

…and now, the Commandment

Beyond the obvious problems with performance measurement, there is this one:  every technique or idea you might imagine for assessing quality, quantity, and/or timeliness leads to a significant workload for the front-line supervisor.  When evaluating results using any of these measures, s/he must regularly observe and log individual performance throughout the year.  What’s more, records must be kept on each individual supervised… in each critical element.

This understanding leads to the First Commandment of Performance Appraisal:  If thou attemptest to rate employees in terms of Quality, Quantity, and/or Timeliness thou shalt use metrics that require thee to observe, log, and keep book for every employee – in every critical element.

Supervisors who lack elaborate reporting software (such as that used in call centers) don’t like reading this.  The Commandment, however, doesn’t end there.  There’s a corollary which explains why agencies use benchmark and generic standards: If thou cannot or will not keep a bean count on individual employee performance in several critical elements, thou shalt rate thy employees subjectively.

Where metrics aren’t readily available, then a “beauty contest” is the inevitable result.  Some supervisors keep evaluation notes throughout the year.  Most don’t… nor do they have any memory of when the last rating year ended and this one began.  Ratings become guesswork.

Get real!  Get in GEAR!

Managers tell me that there aren’t enough hours left in a day to observe, log and keep individual records on each employee.  The say that time for evaluating employee performance comes after the meetings, “special projects”, and reports that government demands of them.  Moreover, they find “bean counting” (of deadlines met/missed, errors, etc.) demeaning and/or distasteful.  Most managers I meet question whether their agencies would actually benefit from such an investment of time and energy.

The National Council on Federal Labor-Management Relations is grappling with these issues with its GEAR model – now being piloted in several Federal agencies.  GEAR (Goals, Engagement, Accountability, and Results) is initially focusing on the infrastructure needed to rate workers in results.  This includes: regular supervisory feedback; holding supervisors accountable for making appraisals a priority; serious training in performance management; and reconsidering the selection process for new supervisors/managers.  I commend them for putting the horse in front of the cart, and wish them luck with such an ambitious undertaking.

It’s a Commandment – ‘fess up to it!

By my reckoning, if evaluations are to prove useful, the Commandment needs to be acknowledged by OPM, senior management, the National Council, and Chief Human Capital Officers who are responsible for making the law and regulations work.  For decades, front-line supervisors have on the receiving end of rhetoric regarding “results-oriented” and “objective” measures without sensing a commitment from those at the top to do so themselves.

Those who advocate for objective and results-oriented standards need to explain how and why supervisors and managers should adhere to the Commandment.  Those who have tried to quantify the work of Economists, Electricians, Biologists, and Law Enforcement Officers have been frustrated for years.  In some cases it seems as if senior management and HR are more focused on finding something to measure than on actual job performance.

Here’s the Commandment again: If thou attemptest to rate employees in terms of Quality, Quantity, and/or Timeliness thou shalt use metrics that require thee to observe, log, and keep book for every employee – in every critical element.  Now consider a sign that hung in Albert Einstein’s office in Princeton: “Not everything that counts can be counted, and not everything that can be counted counts.”  I think there’s wisdom there.

Subjectivity reigns

In light of the commandment, it might be better to simply acknowledge that employee performance ratings will commonly be subjective.  Where metrics are available and work to motivate, go ahead and use them.  Insisting on specific, objective, measurable, outcome-driven standards where such data is unlikely to be harvested puts too many supervisors in the awkward position of fudging.

The bond of trust between a supervisor and subordinate at the workplace (where submarines are repaired, veterans treated, forest fires suppressed, contracts examined, roads designed, and nuclear materials safeguarded) is paramount.  It is jeopardized when management fails to practice what is preached.  Insisting that metrics reign and performance ratings are science rather than art is one area where rhetoric and reality don’t match up.

Gathering data, analyzing results, and aiming for continuous improvement is a worthy endeavor.  As a management practice it can help all of us see where we are and where we want to go.  Metrics relating to quality, quantity, and timeliness are at the heart of most management philosophies like MBO, SQC, FTF, and TQM.  But the First Commandment of Performance Appraisals hasn’t been followed by managers in most agencies.  That’s why we see so many canned standards.

Offering up “benchmarks” and “generics”, while insisting on results-driven performance standards, isn’t fooling anyone.  It will take honest adults to recognize and acknowledge the contradiction. Perhaps the National Council on Federal Labor-Management Relations can help in this regard. A little candor might go a long way.

Performance Appraisals Designed to Improve Performance

Sure, appraisals are supposed to reward the best performers, but many contend that high ratings are rotated based on informal quotas and that consistent excellence is seldom rewarded consistently. And, of course, appraisals are supposed to assist in clearing out the “dead wood”, although everyone knows that’s not really happening in the halls and byways of Federal agencies.

Few, however, ponder the possibility of appraisals focused onimproving performance.  It’s always about the rating.  This article is for those who have not yet succumbed to cynicism and want to see an appraisal system that’s worth having.  I contend that performance appraisal is not only HR’s most visible program, but could become its most useful.

The past is prologue

To understand this article, readers may need to be reminded of two recent postings to FedSmith.  The first of these bore the title How HR Should View Critical Elements.  In that piece, I contend that good performance appraisal programs are often a reflection of good critical elements.  Generic elements inevitably lead to “generic” or “benchmark” standards.  These result in appraisals that meet requirements but accomplish little more that the same subjective ratings supervisors would have given had there been no elements or standards.  The intent is to meet requirements while giving lip service to the Government Performance and Results Act (GPRA).

Another article titled, The First Commandment of Performance Appraisal focused on “performance standards”.  It shows how any attempt to evaluate employees in terms of quality, quantity, and/or timeliness inevitably leads management to metric or weasel-worded standards.  Neither of these approaches has worked out well over the 3+ decades since the Civil Service Reform Act was implemented.

Standards presuming to rate people by the numbers (often referred to as a “bean count”) can be used effectively in only a few Federal environments – like call centers, claims processing units, etc.  In these workplaces, data on individual employee performance is commonly maintained and available to management.  The vast majority of Feds, however, work elsewhere.

Workplace “metricians” contend that all critical elements can be evaluated quantitatively.  Supervisors and managers, however, believe that even if they could gather and maintain such data, rating by metrics would prove wasteful.  For reasons discussed in that article, supervisors believe that bean counting would undermine the very service they and their staffs provide to the public.

Wedded to weasel words

Most Feds are rated by subjectively comparing their performance to “weasel words”.  Instead of hard unambiguous numbers, standards rely upon softer prose, often provided by agency experts.  Weasel-worded performance standards relieve management of the bean count but also lead to ratings that are blatantly subjective.

Weasel-worded standards often follow a “copycat” format.  From one level to the next, a few adjectives or adverbs are changed.  These fragments from the Department of Interior’s (I could cite several other agencies as well) “Benchmark Standards” serve as examples:

Fully Successful

“The employee demonstrates good, sound performance that meets organizational goals…”

Superior

“The employee demonstrates unusually good performance that exceeds expectations in critical areas and exhibits a sustained support of organizational goals…”

Exceptional

“The employee demonstrates particularly excellent performance that is of such high quality that organizational goals have been achieved that would not have been otherwise…”

These rhetorical gimmicks do not escape employee notice.  They also tend to become inflated, leading to “walk-on-water” expectations of creativity, clairvoyance, and superhuman aptitudes as authors run out of superlatives.  Truly outstanding employees are unlikely to reach such lofty heights.

The road less traveled

The limited choice of metrics vs. weasel words has vexed the Federal community for decades. I thought these were our only two options for writing standards.  Then an overlooked provision in the Code of Federal Regulations jumped off the page one day.  5 CFR 430.203 states, in part,

“A performance standard may include, but is not limited to, quality, quantity, timeliness, andmanner of performance[Emphasis added]

What would a “manner of performance” standard look like – especially since it differs from quality, quantity, and timeliness?  I presume these measures focus on work habits – the manner in which the employee does his/her job.  Instead of rating someone based on how fast, how accurately or how many; the manner of performance standard would focus attention on how they perform.

A different way to devise performance standards

In this article will illustrate the manner of performance option by using a critical element from one of my old performance plans as a springboard.  I was a Labor Relations Specialist, and the critical element I’ve chosen for this article is, “Case Preparation and Presentation”.  It involves taking HR cases to third-party hearings such as labor arbitration.

Any number of little things can/do go wrong when preparing and presenting cases.  After brainstorming specific problems within the employee’s control, an edited list might have the following items:

  • Demands from several pending cases result in last minute panics
  • The specialist fails to research judge/arbitrator’s past decisions
  • Pre-hearing deadlines are missed
  • Supervisor is uninformed re: status of pending cases
  • Settlement agreements are hastily arranged and decided
  • Opening and/or closing arguments are not prepared in advance

“Manners of performing”, if followed by the employee, might prevent each of these failings in the coming year.  Small, but specific, work habits become the grist for a Fully Successful standard designed to improve case preparation and presentation.  Presuming a five-level evaluation system by employing the titles “Outstanding”, “Superior”, “Fully Successful”, “Marginal” and “Unacceptable” – here’s an example:

Fully Successful Standard

Performs all aspects of the critical element and specifically follows all of the following:

  • Employee will maintain a calendar (accessible to supervisor) used to track progress of assigned cases.  Calendar is reviewed and updated daily.
  • A prospective arbitrator’s published decisions will be reviewed and annotated.
  • Supervisor will be advised at least a week in advance if any deadline might be missed.
  • Within a week of case assignment, employee will prepare a summary of the matter outlining the positions of the parties and forward it to supervisor.
  • Before discussing settlement, will develop options for management’s consideration.
  • Two workdays before any hearing, drafts of opening and closing statements will be confidentially forwarded to potential witnesses.

This example isn’t perfect.  The italicized preface can be changed to any supervisor’s taste, as can the specific work habits you see here.  What’s important is the format – specific work habits that, if encouraged and enforced, might lead to improved job performance.  The reader should notice that the standard doesn’t tell the employee how often s/he doesn’t follow these manners of performing.  The presumption is they follow each of them every day.

Avoiding a “backwards standard”

Where an element can be rated at any one of 5 levels, the next task is to distinguish the Marginal and Unacceptable standards.  Over the course of decades, agencies have been faulted by the MSPB and Federal courts for “backwards” standards.

I’ve settled on pre-formatted or “fill-in-the-blank” standards similar to these:

Marginal Standard

Following formal counseling, fails to follow any 1 item(s) shown in the Fully Successful standard on 2 occasions.

Unsatisfactory Standard

Following formal counseling, fails to follow any combination of item(s) shown in the Fully Successful standard for a total of 5 or more occasions.

The numbers you see in these examples are changeable by the supervisor devising the standards, as is the format.  Moreover, the metric is a simple number that isn’t required unless the supervisor’s assessment of the employee’s competence has led to a formal sit-down.  The idea is not to paint a picture of Marginal and Unacceptable performance.  Instead, frame these as failures to perform at Fully Successful.

Outstanding stands out

Next comes a written standard for the highest level of performance in this particular element, remembering that there might be 3-4 critical elements in a performance plan.  Consider the best performers who have prepared and presented cases in administrative hearings.  What were the little things that makes/made their work stand out?  Here’s a potential list:

  • Uses visual aids to map and/or diagrams events.
  • Provides witnesses with written sets of anticipated questions.
  • Preparation of witnesses includes mock cross-examination.
  • Makes arrangements with judge/arbitrator that will minimize witness waiting time.
  • Has published case law copied and available at hearing.

The standard derived from brainstorming such positive work habits might look like this:

Outstanding Standard

Meets Fully Successful and, in addition, demonstrates all of the following work habits:

  • Employee will identify testimony that might be enhanced by illustration and prepare witnesses to use whiteboard or other acceptable medium.
  • Each witness will be given direct examination questions and their answers from earlier discussions/interviews.
  • First time management witnesses will be prepared at least twice for any given case and provided with simulated cross examination at their last preparatory meeting.
  • In pre-hearing conference, employee will discuss how witnesses may be notified “just in time” to minimize their non-productive hours without delaying the hearing.
  • When citing relevant case law and regulations during testimony or closing arguments, copies will be made available to hearing official.

The statement at the top of this list of work habits is important.  It clearly explains that the highest level performance comes from a List A + List B concept.  List A was designed to improve problematic performance.  List B represents “best practices”.  All are aimed at ensuring positive outcomes and improving performance at the individual level.

Fill-in-the-blank again

As with Marginal and Unacceptable, a standard for Superior can be pre-formatted.  Here’s an example:

Superior Standard

Performs as described in all manners contained in the Fully Successful standard and, in addition, the first two items, but not all of Exceptional.

The blank can be filled with any simple metric, like “half” or “60%”.  Using this format, supervisors can more clearly distinguish among the most common three ratings – “Fully Successful”, “Superior” and “Outstanding” as they’re labeled in this example.  Each standard encourages the employee toward better performance than they may have exhibited the previous year.

Before and after

For comparison purposes, the standards the Navy had in use back in my day read as follows:

Superior

In addition to the Fully Successful standard below, incumbent shows expertise– coupled with creativity– in dealing with unusual or difficult cases.

Fully Successful

Case preparation is thorough, with regulatory or precedential questions or issues explored in detail.  Alternative solutions (including settlements) are researched and presented comprehensively.  Management representative duties are performed in a manner consistent with program policy and third-party requirements.

Marginal

Some aspects of case preparation or presentation are incomplete or technically inaccurate, showing inattention to details.  On occasion, alternative solutions are inconsistent with program goals.

The manner of performance standards look and read differently.  Those created for the critical element “Case preparation and presentation” would be read like this:

Outstanding

Meets Fully Successful and, in addition, demonstrates all of the following work habits:

  • Employee will identify testimony that might be enhanced by illustration and prepare witnesses to use whiteboard or other acceptable medium
  • Each witness will be given direct examination questions and their answers from earlier discussions/interviews.
  • First time management witnesses will be prepared at least twice for any given case and provided with simulated cross examination at their last preparatory meeting.
  • In pre-hearing conference, employee will discuss how witnesses may be notified “just in time” to minimize their non-productive hours without delaying the hearing.
  • When citing relevant case law and regulations during testimony or closing arguments, copies will be made available to hearing official.

Superior

Performs as described in all manners of performance contained in the Fully Successful standard and, in addition, the first two items, but not all, items in Exceptional.

Fully Successful Standard

Performs all aspects of the critical element and specifically follows all of the following:

  • Employee will maintain a calendar (accessible to supervisor) used to track progress of assigned cases.  Calendar is reviewed and updated daily.
  • A prospective arbitrator’s published decisions will be reviewed and annotated.
  • Supervisor will be advised at least a week in advance if any deadline might be missed.
  • Within a week of case assignment, employee will prepare a summary of the matter outlining the positions of the parties and forward it to supervisor.
  • Before discussing settlement, will develop options for management’s consideration.
  • Two workdays before any hearing, drafts of opening and closing statements will be confidentially forwarded to potential witnesses.

Marginal Standard

Following formal counseling, fails to follow any 1 item(s) shown in the Fully Successful standard on 2 occasions.

Unsatisfactory Standard

Following formal counseling, fails to follow any combination of item(s) shown in the Fully Successful standard for a total of 5 or more occasions.

Setting a new course

The Code of Federal Regulations cites three options for developing performance standards: 1) Quantity; 2) Quality; and 3) Manner of performance.  The first three inevitably lead to either metrics or weasel-worded generics.  These standards seldom serve to actually improve individual performance.

The manner of performance approach offers the possibility that the employee will be evaluated against positively stated criteria they can clearly see and understand.  All rating levels are clearly distinguished and focused on perfecting productive work habits where most needed.  While not as definitive as metrics, these standards may prove far more useful.

This idea isn’t for those who want simple solutions to complex problems.  It is of no use to those who wish appraisals would go away. This approach still requires supervisory observation and engagement.  If it’s not for you, head back to the familiar world of metrics and weasel words.

There are hundreds of HR Specialists, however, who have been frustrated when asked for help developing performance standards.  By focusing on work habits that produce results, rather the results themselves, manner of performance standards offer a different perspective – one focused more on improvement than racking and stacking.

As a recent seminar participant wrote in her evaluation, “The ‘manner of performance’ concept seems very intuitive but I can’t figure out why [her agency] has never used/embraced it.  It’s a challenge to write the Fully Successful level, but once that is done, it really should make the evaluation process easier and allow an employee to reach higher and improve.”

Passing Laws and Joints in the State of Washington

Stoners Unite!

Listening to the radio this morning, I heard yet another radio news story on “the birth of a new industry in the state of Washington” – the growing and marketing of marijuana.  As you may recall, my state was one of two that has legalized marijuana in the November election – Colorado being the other.  Now comes the hard part, which involves implementing the referendum that was passed by the voters.

While legalizing pot may shock some FedSmith readers, here in Seattle, the pungent odor of legal cannabis has become quite familiar.  We passed a “medical marijuana” initiative way many years back and our legislative bodies worked over the course of a decade, trying to decide how to implement the will of the people.  Green crosses denoting “dispensaries” have popped up on storefronts in neighborhoods all over Seattle during the past few years.  People with prescriptions (I’m told they’re not too hard to come by) have been buying medically recommended cannabis for some time now – often within blocks of pharmacies which dispense other prescriptive medications.

I have a friend who has a prescription for cannabis.  Her health is fragile and she finds relief after work some days by smoking pot.  She grew marijuana plants in her basement legally and, through a complex set of regulations, could “donate” some of the excess to a dispensary.  With the more recent legalization vote, however, any adult in our state can have up to 6 plants… legally.  My wife and I have a plot in our local community garden.  We grow a few vegetables and berries there.  I doubt we will be raising a cannabis crop there anytime soon, but the option is now licit.

Which government are we talking about?

If that were the entire story, FedSmith readers from around the country might start shopping for a transfer to Washington or Colorado.  It’s not.  Our Governor and state Attorney General have recently met with US Attorney General Holder and our US Attorney’s office to discuss whether and/or how the Feds will allow Washington to proceed to implement the will of our citizens.  Thorny issues present themselves on many fronts, and the Feds are being cautious but not antagonistic.

Washington’s United States Attorneys (we have two districts in our state) have been clear on one point as negotiations proceed.  Regardless of state and local positions concerning the possession and use of cannabis, these are crimes in the eyes of our Federal government – which includes government offices, lands, military reservations, etc.  Those subject to random drug screenings cannot use state law as an excuse when testing positive for the active chemicals in marijuana.  For now, I can pitch a tent in a state park and decide whether to drink a beer with my dinner or smoke some marijuana.  That is not the case when camping at Mount Rainier National Park.

Of greater concern are reports that might reach agency security offices.  For the thousands of Feds whose job requires a security clearance, pot remains a “controlled substance” in the eyes of Uncle Sam.  Possession of cannabis still represents contraband at the workplace to agency attorneys and security officials.  As with other personal habits/choices that may be construed as security risks (such as driving under the influence of alcohol), marijuana legalization doesn’t necessarily mean that Feds may indulge freely without concern regarding the consequences.

The times they are a changin’

What Washington’s new law does change, however, is important.  In the past, Feds out here could be arrested and jailed for having joints or small baggies of marijuana in their possession.  Now, however, simple possession and private use of less than an ounce will not warrant the same response.  Absent any local law enforcement action Washingtonians can use pot socially with less fear of arrest or a criminal record.  Of course, driving under the influence (which was specifically addressed in our state’s initiative) is still a crime.

As with other “morals laws”, the worm appears to be turning in our state, and much of the country.  Every US president since George H. W. Bush has acknowledged he smoked marijuana at some time… although not all have inhaled.  Had any of them been caught, they may have been felons and ineligible for candidacy.  Like them, I long ago reached a place in my life where smoking pot is of little, if any, interest.  Personal habits notwithstanding, using cannabis has been less of a moral hazard in this country over the decades since the Woodstock festival.  I was there in 1969 and stunned to see hippies fearlessly smoking joints within sight of police.

Washington State’s new law was not passed by elected officials.  As a citizen initiative, it will be difficult to enact and enforce.  Laws concerning the prohibition of marijuana, however, have proven challenging as well.  Washingtonians who favor the recent change hope that costs of law enforcement and incarceration will be reduced.  At the same time, revenues from taxed cannabis will (hopefully) more than offset the costs of regulating marijuana production and commerce.

Turning to the larger frame, the voter initiatives that passed here and in Colorado are signs that the War on Drugs is being re-examined in the 21st century.  We are seeing rapid social changes on many fronts – including the status sexual minorities (who can marry in my state), acceptable language, piercings/tattoos, etc.  Some welcome these changes and others condemn them.  Those Feds who agree with Washington’s new cannabis legalization, however, should think twice before pulling their bongs out of the closet in celebration.

Discipline, Behavior, Distractions, and Change

Following a recent seminar, I was talking with a Labor/Employee Relations Specialist as he drove me to the airport.  He was worried about a written reprimand written to a particularly obnoxious employee.  One of his concerns was the possibility that the letter might result in a grievance or EEO complaint.  A grievance would have senior managers looking through the documentation and taking time out of their schedules to meet with the offending employee and her representative.  An EEO allegation could lead to an investigation of management’s motives in this matter.

When your posterior is among the alligators…

It was quickly becoming apparent that these potential litigation scenarios were obscuring the horizon.  The offending employee’s supervisor was apprehensive and the HR specialist was strategizing.  From far outside of the conflict, I was reminded of the old spiritual heard during the civil rights movement of the ‘60s – “Keep your eyes on the prize, hold on.”

As I sat in an airport boarding area anticipating my return home, I became distracted by the matter as well.  Years ago, a supervisor attending one of my seminars asked a question that may have been rhetorical, but remains embedded in my memory, “What leads you to believe that a memo will change an adult’s behavior?”  The memo to which she referred was an “Official Reprimand”.

Those of us who work in Federal employee relations can become obsessed with paper trails.  After all, it takes a history of progressive discipline for most employees to be fired.  No history, no conclusion. Change, however, should be the objective of all disciplinary actions short of removal.  “Change your behavior” is the message being directed by these actions.  Most employees do.  Some don’t.

Mama tried to raise me better…

As in our youth, discipline happens when a person designated to lead (teacher or parent) is convinced we have misbehaved or broken a rule.  Whether it was a spanking, a lecture, a time-out, a detention, or some other sanction; the objective was to ensure you didn’t misbehave again and learned to operate within a system of rules.

Now fast-forward to someone is “written up” for cussing out their coworker.  If the accused employee is arguing over the fact there is no list of unacceptable verbiage at the workplace, that’s a distraction.  So is questioning why others who swear when they stub a toe are dealt with less severely.  Adults acknowledge offensive behavior – intentional or otherwise.  They agree to cease and desist.

Telling your supervisor you are sick and unable to come to work when you are about to go fishing is a lie.  Arguing that it’s “my sick leave and I can use it however I want ,” is a childlike response from the person being confronted.  So is grieving management’s response to your lie because they can’t prove you weren’t sick.  If you had grown up like most of us, you would be better off to show embarrassment and apologize.

It’s not about the paper

Lawyers, HR specialists, and the managers they assist need to keep their eyes on the prize.  Discipline isn’t just a series of paperwork exercises.  It’s an attempt to correct a behavior problem.  Such actions should come from a sincere frustration over paying someone an adult salary for adult work, while s/he behaves like an adolescent.

Discipline shouldn’t be mechanistic.  No mom in her right mind would say, “If you talk back to me you’ll go to your room for the rest of that evening but if you steal from my purse you’ll lose computer/phone privileges for a week.”  Similarly, a “Table of Penalties” is silly tool when addressing the issue of an adult who neglects safety protocols or who believes their tobacco addiction should be subsidized with time off work to smoke.

Reprimands and suspensions represent documentation of the incident(s) and a hope for change.  They are bureaucratic responses to willful acts, costly mistakes, or repeated negligence.  Human behavior, however, is complicated.  A piece of paper or a few days without pay won’t stop an adult from lying, cheating, or stealing again absent a willingness to change.

What would a “grown-up” do?

We all know that acceptance of responsibility and/or apologies aren’t surefire indicators of change.  (Consider substance abusers you have known.)  They may, however, be better bets than pieces of paper designed by a Human Resources Office.

I was asked by my client, “What if she grieves the reprimand we’re preparing?”  My response is that the reprimand never was the issue.  It’s a memo.  It can, and within 1-3 years will, be shredded.  The only issue of importance to a good manager is future deportment.  When we in HR/legal focus on winning or losing the case, we are distracted from what matters most to leaders – 80 hours of honest work for 80 hours of stagnant-but-decent-pay.

Why not offer to shred the reprimand if the employee will assure you that, in months and years to come, he/she will not behave in a similar fashion?  In other words, it’s not about the disciplinary action, it’s about regaining confidence in that employee and their future choices.  …and get it in writing!!  If they are serious about changing, they should be willing to put their name to it.  That written acknowledgement is a better bet than any “Letter of Reprimand” I’ve ever read.

Meaningful solutions

I am a volunteer mediator of Federal workplace disputes through the Seattle Federal Executive Board’s excellent Alternative Dispute Resolution program.  I often find that creating the right climate for discussing a supervisor’s desire for change and the employee’s willingness to own certain behavioral issues can be an effective alternative to formal discipline.

Rather than official scoldings via HR-authored paperwork, structured conversations run by impartial outsiders can steer the employee’s and supervisor’s eyes back to the prize.  After allowing the parties to air their contentions, rebuttals, assertions and denials – a competent mediator will gradually shift their focus away from the past and toward the present and future.  That’s where the focus should be.

Some employees labeled as having a “negative attitude”.  Mediators often unearth the germ(s) that spawned those attitudes and behaviors.  Traditional disciplinary actions don’t explore the baggage that needs to be opened and examined if they are to move past that old stuff.

When it works (which is far more often the case than not) mediated discussions lead to written agreements that most lawyers and judges agree are contracts regarding future behavior.  That’s what most supervisors want – change.  If the employee doesn’t follow through on those written commitments, leadership should seriously escalate its response with the next incident – just a judge or parent would do.  In terms HR, unions and lawyers should understand from analyzing “Douglas factors”, the employee’s “potential for rehabilitation” has been called into question.

When mediated agreements aren’t reached, management and HR may default to disciplinary procedures as if the mediation never occurred.  Most mediators insist on confidentiality agreements which make these private discussions inadmissible as evidence.  Nothing has been lost but time.  What may be gained is a clear impression of the employee’s character and willingness to respond to leadership and agency norms.

Leaving Us vs. Them behind

Some FedSmith readers instinctively take an employee’s side in matters relating to discipline.  (No doubt, there are rotten apples in the barrel of leadership.)  Others jump to management’s defense.  (The vast majority of civil servants want to do their jobs without a coworker’s antics diverting their attention.)

My experience is that blame isn’t the issue, nor is proving a “charge” by a “preponderance of the evidence”.  Undistracted job performance is the objective.  We who advise supervisors and managers need to focus on the real issues – acknowledgement, apology, and/or future assurances.  Only when these more mature options fail are unilateral actions like reprimands and suspensions of real value.