Negotiating a Federal Employee Resignation – A Useful Tool for Managers
SEA Member Bob Gilson discusses how best to deal with problem employees.
By Bob Gilson
The career Federal service has changed. When CSRS was the predominant retirement system and before FERS changed employees’ views toward sick leave; when Federal work was largely static and before reorganization was considered a tool like any other, Federal employment was a lifelong event for Federal employees. The changes of the last 20 or so years about the way Federal employment is viewed also calls for changes about how it should end if an early end is required.
An employee, of course, can resign at any time. If Agency management decides the employment relationship needs to be severed, the statutory tools available are disciplinary removal or performance-based removal in most cases involving career staff. In the private sector, one hears of “golden parachutes”. If we tried that in Federal service, every congressman seeking reelection would jump on the fraud, waste and abuse that just had to be involved. I remember the promises made selling the law creating statutory labor relations and a Merit Systems Protection Board that it would be ever so simpler to fire a Fed if that bill was passed. Well it was and no it isn’t easy and hasn’t been since. Unless the employee shoots his supervisor on the national news (arguably), the pain of a Federal removal action can dissuade the stiffest-backed, thickest-skinned manager from using the tool. Performance-based actions are even more difficult despite a claimed lower standard of proof. Firing “Harry” can be so difficult only a masochist recently and improperly released from an institution would voluntarily try it.
There is, however, a tool in the toolbox that, if used wisely and with some skill, can end the employment relationship in a mutually agreeable manner. This is a negotiated resignation. Why use the tool? The answer is simple. If someone has decided that the Agency has had enough of “Harry” and his tardiness, failures to call in, poor work product, lack of team commitment, etc., etc., the time has probably come to consider remedial action. Other tools may be employed first such as retraining, counseling, guidance and direction memos (obviously my favorite – See earlier articles), leave restriction, reprimand, short suspension and the like. But at some point, after referral to EAP and other options have failed, perhaps its time to sit down and reason with “Harry”.
Key to using the tool is determining when it can be suggested, by who, and under what terms.
When Might You Suggest a Resignation?
As with other human transactions, timing is everything. Quoting Samuel Johnson, "The prospect of hanging concentrates the mind wonderfully." A recent disciplinary gaffe, major performance faux pas, verbal indiscretion or other visible blunder may offer the opportunity to visit with “Harry” and see if he is amenable to a discussion of a future outside the Agency. Any time a proposed action is pending or a PIP letter has been issued cries out for such a discussion. Depending on your labor relations climate, a suggestion to a union official that a deal is possible may help. Yeah, Yeah, I know all about the Privacy Act. I said “depending on the climate”. If the employee is unrepresented (by a union) and has a lawyer, as many with a “history” do, maybe a call to the lawyer suggesting a deal would work. Saying “deal” to a lawyer is a little like saying “photo op” to an Agency head, if you get my drift. Another option is simply to schedule a meeting with “Harry” and ask the wonderfully leading question, “What are we going to do about all this?”
Who should do the talking for the Agency?
Proposing or deciding officials in pending actions should probably be cut from the team. As should anyone who has had run ins with Harry of a highly charged and negative nature. The balancing act is that the person should probably be known by Harry and be perceived as having at least the authority to suggest a deal to management. People with negotiation experience (not mere knowledge) are likely the best. Agency Human Resource people are not frequently viewed as “the enemy” by the “Harry”s of the world. Lawyers can be very effective but might scare Harry off. You may try a two person team. The first to conduct the initial meeting and then the lawyer or employee relations specialist can come in to attend to details.
What Terms Are Possible, Appropriate, Legal, etc.
Click here to look at a sample Employment Resolution Agreement. Like that title? It’s written that way for a reason. If our goal is to help Harry move on to a more compatible and congenial work situation perhaps ideally suited to his unique skills, we don’t want the paper to look like we’re firing him in nicer words. I’ve used similar documents and the Federal lawyers I worked with said all was OK. But don’t depend on that. Have your lawyers look at it (just one will never do), make the obligatory Agency-specific General Counsel-preferred edits and move on.
Conducting the Negotiation.
You likely want to tell Harry to consider bringing a representative to the meeting and asking who that representative will be. Again, given the right climate, you might be able to soften up the representative before you meet. It’s also a chance to do a trial balloon through the representative. If the representative has discussed the nature of the meeting to Harry and he still shows, you may be on your way.
I wouldn’t walk in the room on first approaching Harry with my proposed agreement in hand. A little groundwork might be helpful. A discussion in principle of the concept and what it might mean to him is in order. If he bites on the idea of a resignation agreement, then move on to the agency’s commitments first and what he would need to do after. Keep in mind, as long as “Harry” is in the room, it’s his future we’re discussing so ease up. If you get to shuttle diplomacy with the union rep or lawyer going back and forth with “Harry” out of sight, you can get tougher. They most likely will have been beat on by better than you.
Selling Management on a Deal.
I was engaged in some of the very first settlements on behalf of Navy after the creation of MSPB. We found the key to selling management lay in a few essential arguments. First, there is the idea of a “guaranteed result”. Vince Lombardi once said, “When you throw the football, three things can happen and two of them are bad!” You can quote me that “At a hearing, many things can happen and usually only one is good.” Second, sell the cost. An employee’s pay has been appropriated through the end of the fiscal year whether we get any work out of him or not. Any cost less that that is a benefit. Getting proposals, decisions, PIPs, etc together can take a lot longer than any administrative leave or non-duty pay status payout you’re likely to agree on to make a deal. Third, the morale of the other workers who have carried “Harry” will visibly lift on his departure. Finally, you may get a replacement that will not be saddled with problems or at least the same problems.
This tool can work and allows the person involved to maintain their dignity, have a say in the decision process and perhaps not leave bad-mouthing the Agency that “did him in”. I hope this helps. Give it a try.
By the way, the views I express here are mine alone, not SEA’s. I apologize to all the Harrys that read this, it’s really nothing personal.
Bob Gilson is currently a Senior Associate with RGS Inc. His specialty is working with and training Federal Agency clients to resolve employee problems at all levels. Both before and since retiring, Bob has negotiated on behalf of Federal clients. A retired Agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues. He can be reached at firstname.lastname@example.org.
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Tags: Managers Corner