MSPB recently examined the two main ways agencies can take disciplinary actions against federal employees based on poor performance, noting that each has certain advantages and disadvantages from the point of view of both management and employees. Following is the executive summary.
This report takes a new look at the issue of using Chapter 75 versus Chapter 43 of Title 5 of the U.S. Code to remove or demote a poor performer. Chapter 43 permits agencies to take actions to address poor-performing Federal employees by following a specific set of rules. Chapter 75 permits agencies to take either performance- or conduct-based actions, following a set of rules that is somewhat similar to the set of rules in Chapter 43, but differs in several substantive ways. When dealing with poor performers, agencies have the authority to choose which chapter to use, and therefore which set of rules to follow.
This report examines the requirements of Chapter 43 and 75, the choices agencies have made in the past on when to use one authority versus the other, and what agencies and supervisors say are the barriers to taking performance-based actions. (Perhaps surprisingly for some readers, many of the barriers do not come directly from the law in either chapter, but rather are inherent in managing performance in a merit-based system.) This report also provides a brief analysis of the similarities and differences between these two authorities to help agencies decide which authority may be right for them in any particular case.
The U.S. Merit Systems Protection Board (MSPB) does not assert that either authority is superior to the other. Rather, each authority has advantages and disadvantages for both agencies and employees. As long as both options remain available, agencies and supervisors must make an educated decision on which authority to use and when.
1. Most of the work involved in removing an employee for poor performance is inherent in managing employee performance in a merit-based system rather than the requirements of any particular statute or regulation.
2. Chapter 75 is notably more popular than Chapter 43 for addressing poor performance, but many agencies still use both authorities. Use varies primarily by occupation, with Chapter 43 being more popular for professional occupations, and Chapter 75 being more popular for cleri¬cal and blue-collar occupations. Agency representatives told us that Chapter 43 has some ben¬efits over Chapter 75. These include that Chapter 43 makes the supervisor get more involved with the employee and the work; has a provision that the penalty cannot be mitigated on appeal; and has a lower burden of proof. However, some agency representatives expressed con¬cerns that Chapter 43 has too many technicalities which can be mishandled by the supervisor.
This study indicates that many of the challenges of taking performance-based actions are inherent in performance management in a merit system. Because the underlying issue is not the language of Chapter 75 or Chapter 43, simply choosing one authority over the other does not solve the Government’s problems in addressing poor performers. We therefore make the following suggestions for how the Government might better address the challenges of taking demotion or removal actions for poor performance.
Some aspects of the civil service may need reforming, and how agencies address poor per¬formers should be on the table in any such effort. However, when amending the statutes regarding personnel actions and poor performers, it will be important to recognize the differ¬ence between what can and cannot be legislated. That Chapter 75 (with its higher burden of proof) is consistently and notably more popular than Chapter 43 for performance-based actions likely indicates that the level at which the burden of proof was set is not the problem with addressing poor performers, nor is it the solution.
We recommend that agencies allow supervisors the flexibility to use either Chapter 43 or Chapter 75 to address poor performance. Having both options available may increase the willingness of a supervisor to take an appropriate action by choosing the authority that best suits the particular situation.
Supervisors carry the responsibility for performance management. As a result, having skilled supervisors is crucial to avoiding the retention of poor performers. Therefore, it is impor¬tant for agencies to pick supervisors with the skills and willingness to deal effectively with poor performers, and to provide those supervisors with training and guidance on how to use the regulations to address poor performers. (Effectively dealing with these poor performers is more than a willingness to fire someone. It also means recognizing employees’ training needs early, distinguishing between that which can and cannot be trained, and providing the most effective assistance to employees as is practical.) We urge agencies to select supervisors carefully, and then hold supervisors accountable for dealing with poor performers. Having an authority under which a supervisor may demote or remove an employee is of little use if the supervisor is opposed to taking an appropriate action, or if the supervisor is unwilling or unable to do what is necessary to assist employees who could benefit from an appropriate level of help.
For Human Resources (HR) Staff
We recommend that HR staff be proactive. HR staff should educate supervisors on their options regarding poor performers and not wait for the supervisors to report a problem to HR. If supervisors are to address poor performance when it arises, before the problem becomes critical, then they need to know early what steps to take in order to lay the frame¬work for later actions.
After a poor performer has been identified, and the process to help the employee has begun, we recommend that HR staff check with the supervisor to see if the poor performer has improved, and to see if the better performance remains in effect. HR should advise the supervisor on what to do if the poor performer has not improved, or is backsliding. While the responsibility to act belongs to the supervisor, it may be difficult for a supervisor to know what the options are unless HR educates the supervisor. We strongly recommend that HR provide proactive customer service and not limit themselves to situations where the manager must approach HR to ask if there are any options available. Previous studies have shown that sometimes managers erroneously believe they already know the answers, and therefore do not ask HR the questions they need to ask. For this reason, HR needs to make sure supervisors do know their options and responsibilities, and not assume that silence from the supervisor means that nothing is wrong.
We recommend that supervisors intervene as soon as they identify a performance problem and not wait for the situation to worsen. The sooner the agency addresses the performance issue, the sooner the agency may benefit from improved performance. And, if a poor per¬former’s performance cannot be improved, the sooner the supervisor begins to offer assis¬tance, the sooner the supervisor will be able to establish whether the employee is able and willing to improve or whether it will be necessary to initiate a demotion or remova