When life gives you lemons, dance??

In the previous Trump Administration, the Office of Personnel Management (OPM) thought it was a good idea to create stronger accountability in the federal workforce. Federal employees have long complained that managers do a poor job at this – they don’t remove underperforming employees or, if they do, it’s to pass those employees on to another unsuspecting agency. In fact, the practice is so well known in government, it has its own name: “The Dance of the Lemons!”

OPM rightly reformed these practices in 2020 by promulgating a new regulation to increase employee accountability and reduce some of the barriers that managers have often faced in removal or disciplinary actions.

It was too little, too late, however. The Biden Administration issued an Executive Order just days after inauguration instructing OPM to revoke the regulation (which it did in 2022).

Why would Democrats object to greater accountability of federal employees who serve the American public? These are their words, not mine: to “protect, empower and rebuild the career federal workforce as well as its current policy to encourage employee organizing and collective bargaining.” No mention of serving the American public or being good stewards of taxpayer dollars.

Well, it turns out that what’s old is new again.

President Trump – in his current term – has made it a primary goal to ensure the federal government is in fact responsive to the needs of the American taxpayer. Consistent with these goals, we at OPM have issued a series of regulations to create a high-performance culture among the federal workforce – one that both distinguishes (and rewards, recognizes and promotes) exceptional performance and that ensures accountability for those who may be unable to perform the duties for which they were hired.

To that end, today we are releasing a proposed rule – in partnership with the Merit Systems Protection Board (or MSPB, which serves as the primary adjudication organization for employee-related adverse actions) – to promote employee accountability. In fact, that’s the name of the rule!

What’s the problem we are trying to solve?

We’ve written about some of this before , but historically the federal government has rated 0.3% of its employees as performing below expectations. On a population of roughly two million civilian employees, that’s a pretty small number. But we’re not here to debate the size of this pool – at least not today.

Because, even for those employees who truly are under-performing, the federal government does not do a good job at managing out (or successfully rehabilitating) these employees. Instead, too often, managers either ignore performance issues or as noted above, transfer under-performing employees to other groups or agencies.

This does not serve the American people well, nor does it create a high-performance culture in which the many great federal employees we have can do their best work. In general, I have found that employees want to be in an environment where they can perform at their best, be rewarded and recognized for their performance, have a manager who cares about their career development and work alongside other smart, diligent, dedicated, and accountable colleagues. When we don’t create that kind of environment for federal employees, we risk losing and de-motivating our best performers; that serves nobody well.

My former partner at Andreessen Horowitz (Ben Horowitz) coined “The Law of Crappy People” to describe when a bad performance culture degrades an institution. According to the “Law” (I admit that sounds weird), “for any title level in a large organization, the talent on that level will naturally converge to the crappiest people with that title.” Why? Because people always benchmark themselves against the worst performer in the organization who has the same (or higher) title level. In government speak, “If that crappy performer is a GS-12, and I know that I perform better than him, I should at least be at GS-12 versus my current GS-11 position.”

Ben was talking about the importance of a carefully managed promotion process as the antidote to falling prey to this “Law,” but it’s applicable broadly to poor performance management. And that’s why OPM is focusing on this.

So, how did we get here and what are we doing about it?

There are a lot of reasons – and solutions – but simply put, we have made the disciplinary and removal process too complicated and inefficient such that it’s easier for managers to ignore under-performance than to address. No manager wants to spend 6, 12, or even sometimes 18 months trying to manage out an under-performing employee. That changes now.

First, we need to do a better job training managers in performance management. Our proposed rule will do that, requiring managers to be trained in accountability procedures, probationary and trial periods, awards and recognition, prohibited personnel practices, and workforce management. Without the tools, we can’t expect managers to deliver on their obligations.

Second, when performance issues arise, we are proposing to make it easier for managers to take action. For example, under today’s system, we don’t prescribe the length of performance improvement plans (PIPs) in regulation, and as a result they can extend for longer than appropriate timeframes – and often managers (or collective bargaining agreements) provide even longer time periods by introducing a pre-PIP informal remedial period before the actual PIP starts. Our default PIP will now be limited to 30 days (and prohibit pre-PIPs) and employees must demonstrate that they are performing their role at the “Fully Successful” level, not just that they are doing marginally better from where they started. We are also proposing to enable managers to avoid having to do progressive discipline if a PIP is unsuccessful and instead being able to initiate removal proceedings immediately.

To further increase the efficiency of the process, we are proposing to standardize the time period during which employees can respond to adverse action cases and barring federal employees from using official time to represent employees against whom adverse action is being taken.

Third, if an employee appeals an adverse action to the MSPB, we are proposing to make it more efficient for the MSPB to review appeals. Today, the MSPB goes through a list of twelve items – called the Douglas Factors after a 1981 case – to evaluate the reasonableness of the manager’s adverse action decision. The review of these factors is often very mechanical and can create “foot-fault” decisions against the manager for failing to properly document each of them in sufficient detail.

Instead of this checkbox process, the MSPB would now apply a “totality of the circumstances” test to review the reasonableness of the proposed adverse action. We think this will be much more efficient and sensible review that protects the rights of employees without elevating form over function.

A final word on performance management.

I realize some of you may be reading this and thinking: “Wow, this sounds harsh. Why is it a goal to make it easier to get rid of an employee?”

None of what we are proposing is intended to minimize the human element of the potential for someone to lose their job. It’s a serious topic and one that demands serious attention. And these reforms propose serious solutions to a fundamental organizational challenge.

To attract and retain great people – who the vast, vast majority of the federal workforce represents – we owe it to them to have a system that rewards excellence and demands accountability. Not everyone – in any organization, whether government, private or non-profit – performs at the same level and that’s okay. We can’t expect everyone to dedicate all of their waking hours to a job; every organization needs reliable people who show up every day, successfully perform their responsibilities and then leave at the end of their workday to take part in non-work-related activities from which they likely derive their source of happiness and satisfaction.

But, when employees are unable (or unwilling) to perform their responsibilities and when given an opportunity to correct their behavior and demonstrate satisfactory performance remain unable to do so, leaving them in the organization jeopardizes the fundamental success of the entire team. That serves nobody well and the American people are worse for the wear.