How hard is it to dismiss a public-sector employee because he or she is incompetent, repeatedly earns complaints from the public or shows up late every day? We hear different responses from human resource officials and from the managers who want the employees dismissed.
HR people tend to emphasize that all a manager needs to do is keep proper documentation of bad behavior. But managers often tell us that the process of dismissal is arduous, if not impossible, unless the employee has engaged in egregious behavior like drinking on the job or waving a firearm around.
The truth is somewhere in between.
Though providing documentation of inferior performance makes it easier to get rid of an employee in both public and private sectors, government workers are legally entitled to automatic layers of protection. Even a pile of negative evaluations isn’t enough to stop someone from dragging a government through a series of expensive and time-consuming lawsuits and appeals.
Specifics on termination policies vary, but all state and local employees have serious job protections. The U.S. Supreme Court clarified this in Cleveland Board of Education v. Loudermill in 1985, ruling that government employees have a “property interest” in their jobs and right to due process. This protects them against arbitrary dismissals. The same rights don't apply to those working in the private sector, although fear of lawsuits encourages many companies to be cautious in their terminations.
In all cities and states, public employees have legal rights to getting notice and the opportunity to discuss their situation before they can be fired. Things get even more complicated thanks to civil service systems, which provide specific protections like the right to multiple appeals. In union environments, the process is even more complicated. More than 35 percent of public-sector workers are in unions and contractual guarantees for organized workers provide even more potent job protections.
But there are a few things that managers can do to ease the process of getting rid of really terrible employees. They can start by providing much more rigorous attention to a new employee’s performance early on.
“Employers don’t do a good enough job using the probationary period as a trial period," said Robert Lavigna, assistant vice chancellor for human resources at the University of Wisconsin at Madison. "We need to look at the probationary period as an extension of the hiring process -- not just as a hurdle.”
During the probationary period, it’s easier to dismiss an employee because he has little access to the appeals process. These periods generally run between six months and a year, which is often enough time to gauge competency.
The city of Juneau, Alaska, for example, has a strong emphasis on using the probationary period wisely. Clerical and technical positions are given a six-month testing period, while advanced technical and professional positions utilize a 12-month probation. All its new employees are given training plans their first week of employment that define technical skills and personal attributes for success, and the supervisor keeps careful track of progress and of problems throughout the probationary period.
“When a supervisor has a training plan to follow and works it correctly, it also lets us know if we need to cut someone loose or extend their probationary period to see if they can come to a fully acceptable level of performance,” explains Mila Cosgrove, Juneau's human resources and risk management director. "We've found that having a training plan from the start for each new employee leads to a measurable improvement in employee performance."
So why aren’t employers more inclined to take advantage of this provisional employment time?
As Dean Carothers, a child support officer with Monterey County, Calif., says, once someone has been hired, there’s a powerful desire to keep that person in the job. According to Carothers, “the employer expects a return on their investment [for the training being provided] in the work performed.” Ultimately, it isn’t until a staff member has been proven to be a drag on the organization that the will to retain his services is outweighed by the benefits of having someone else in the job.
It’s also important that the manager, supervisor and employee have candid conversations to indicate whether or not the relationship is working out. Such conversations could persuade an employee to leave a job where there’s a bad fit, rather than wait around for a human resource guillotine to appear in his or her office. Nobody wants to be fired, and it’s easier to find a new job when one is still employed, so the conversation approach to dismissal can often be effective.
“Sometimes there’s even an opportunity to find another position within the organization where there is a good fit,” says Roy Pederson, who is now retired but served as city manager in Scottsdale, Ariz., and Colorado Springs, Colo., and county manager in Maricopa County, Ariz.
Another route to less combative firings may be to have more frequent performance evaluations, thus giving both employer and employee earlier signals of problems.
“In a typical HR program,” Pederson explains, “you do this twice a year. But there should not be an arbitrary period.”
Pederson and other experts in the field believe that it would be worthwhile for states and cities to experiment with providing opportunities for a coaching session on an as-needs basis; perhaps three, five or even ten times a year. With more opportunities to detect shortcomings in an employee’s work habits, there are more chances to correct them, long before anyone’s even thinking about dismissal.
The best route of all is to help employees avoid getting into a place where someone wants to fire them. Neal Alexander, the human resources director of North Carolina, makes it clear that there are better ways to get higher performance. Under the North Carolina Performance Management System, if someone on staff isn’t meeting an important goal, their supervisor can put the employee on a “performance improvement plan where they must accomplish something specific (like increasing the number of files processed by 20 percent) by a certain time.”
But managers often need training, too.
It’s rarely fun for someone to let an employee go, but sometimes it’s necessary and providing training in this skill can be helpful. North Carolina’s Alexander has plans to provide a training program designed to help supervisors deal with confrontation. “Conflict training is necessary for managers and supervisors,” he says. “Otherwise they can let things ride until things get so bad” that they can’t deal with it without undue stress and pain.