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Is Government Better When Anyone Can Be Fired Anytime?

A campaign in the states to make public workers “at-will” employees and undo civil service protections has gained traction at the federal level. But there are early signs of a counter-trend in local government.

In 2011, protesters chanted outside Wisconsin's state Capitol building as the State Assembly passed the collective bargaining bill, curbing the power of state-worker unions.
(William DeShazer/Chicago Tribune/MCT)
If there’s a basic argument about fixing government, it’s a familiar refrain that we hear time and again: that we should run it more like a private business. Except, that is, when public-sector reformers figure they can make private business better by requiring it to run more like government.

Nowhere is this battle shaping up more than in the world of human capital, the collection of rules and processes that shape how governments hire, motivate, pay and fire workers. For many years, reformers, especially from the right, have been chipping away at traditional civil service systems, particularly in state governments, by arguing that government would work far better if it followed the flexibility that private-sector managers have.

The private sector is more efficient, the argument goes, because managers can fire poor-performing employees and have more flexibility in rewarding high-performing workers. Public employee unions and civil service rules, the reform advocates add, hamstring government leaders, making it easier to protect poor performers and harder to provide taxpayers with the services they’re funding.

The state movement began in 1996, when Zell Miller, Georgia’s Democratic governor, led an effort to make all new state employees “at-will,” meaning they could be fired for any reason. Within 15 years, at-will state employees accounted for about 90 percent of the total. Indiana soon moved in the same direction, and many other states have followed: Paul R. Verkuil, a former chairman of the Administrative Conference of the United States, reported that two decades after Georgia’s pathbreaking decision, 28 states had climbed onto the at-will bandwagon.

In 2011, Wisconsin’s Republican governor, Scott Walker, took the fight directly to the state’s public employee unions and won legislation to strip them of their collective bargaining rights. Behind the argument to make government more efficient was a bald political gambit as well: The state’s leading public employee organization, the Wisconsin Education Association Council, was also a prime source of support for Democratic candidates. Walker’s war on the civil service tremendously weakened the unions, reduced the Democrats’ power and turned a once-blue state into a highly competitive swing state.

This one-two-three punch, aimed at upending a century’s worth of merit-system protections and undercutting the unions representing state and local government employees, has had a profound effect on American politics and governance. In the last months of the Trump administration, for example, the president signed an executive order that aimed to wipe away the civil service protection of many upper echelon federal employees. It would have converted officials involved in policy into at-will employees. And it would have transformed the hiring process to make it possible to bring people into the federal government without the traditional checks for competence. This executive order, which created a new “Schedule F” for federal employees, was a sign of the big changes that the Trump team had in mind for a second term.

“Democracy Isn’t Working”

When Joe Biden came into the White House, it was no surprise that abolishing Schedule F was one of his first moves. The civil service system went back to the pre-Trump status quo, and many civil service supporters breathed a sigh of relief, believing that the crisis had passed. But the fight is continuing behind the scenes, with the states once again quietly on the front lines in the quest to use private-sector arguments to weaken the civil service.

Government reform advocate and author Philip K. Howard argues that both the civil service and public employee unions are an unconstitutional abrogation of the chief executive’s power to translate election results into policy. “Democracy isn’t working,” he writes, “because bureaucracy is in charge, not the leaders elected by voters.” Meanwhile, James Sherk, the architect of Schedule F during his days in the Trump White House, has contended that the protections provided to government employees through the civil service system “can prevent Americans from getting the policies they voted for.” Sherk applauded the efforts of the at-will states and argued for a continued state-level campaign until the federal government advances another version of Schedule F, presumably in a future Republican administration.

The evidence for the benefits of at-will employment in the states is decidedly mixed. Early analysis of efforts in Georgia, Florida and Texas found that additional flexibility could reduce the lengthy time required for personnel transactions and increase employee satisfaction with the system. But another study came to the opposite conclusion: that the flexibility came at the expense of employees’ trust in the system.

So even though the record is uncertain, the core argument, derived from the private-sector assumptions that more managerial flexibility without union protections enhances efficiency, is getting a bigger foothold. It’s growing from the states and building a case at the federal level for strong action — for big policy changes that are sure to be back.

The Cost of Not Smiling Enough

So what about the countervailing argument, that the private sector should be run more like government? Many states already impose some level of workplace regulation on employers. More than half of them also mandate a minimum wage higher than the federal level of $7.25 an hour, as do dozens of local governments. But in a move that — if it survives the inevitable lawsuits — could take hold in other locales, New York City has taken the idea a step further.

As of July 4, the city’s fast-food employees were protected from reductions in their work hours by more than 15 percent, as well as from termination or suspension, without “just cause” or “a bona fide economic reason.” The just-cause protections include clarity in the rules and expectations as well as requirements for progressive discipline for poor performers. The just-cause rule accompanied a $15-per-hour minimum wage for the workers.

Efforts to require better pay and working conditions for the people who flip burgers or pass fried-chicken buckets through drive-up windows have been ongoing for years, but it was those employees’ new designation as “essential workers” amid the pandemic that energized reformers: Around the country, fast-food workers have reportedly been fired for asking for masks, publicly complaining about their working conditions or even for not smiling enough on the job. Those stories sparked a debate over worker protections in New York, and the new laws sought to provide the city’s fast-food workers with some of the protections that public-sector workers have long enjoyed under civil service laws.

What’s shaping up is an epic battle over workforce protections. Should government follow the private sector’s lead and make it easier to fire employees? Or should the private sector follow government’s lead and provide more protections? And, most fundamentally, does this mean that the nation’s long civil service tradition is taking torpedoes below the waterline or that its model will reshape public policy for private-sector workers?

It’s clear that there are lots of problems that need fixing. No one really likes the rule-bound inflexibility of the current civil service system. There’s a strong case for providing fair play for private-sector workers. These are more logs for the conflagration of polarized politics, with the fire blazing hottest these days at the state and local levels. Predicting its outcome is impossible right now, but how it turns out is destined to frame the future of the government workforce — and perhaps the private sector’s as well.

Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.
Donald F. Kettl is professor emeritus and former dean of the University of Maryland School of Public Policy. He is the co-author with William D. Eggers of Bridgebuilders: How Government Can Transcend Boundaries to Solve Big Problems.
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