Fed redress system needs overhaul, GAO finds

The General Accounting Office recently reviewed the actions feds can take if they believe they have been the victims of arbitrary and prohibited personnel practices such as discrimination or retaliation for whistle-blowing. Simply put, GAO concluded that the system needs reform.

According to GAO, the complexity and variety of redress mechanisms put into law over the years has resulted in an inefficient, expensive and time-consuming process.

In fact, according to GAO, the system is so tilted in favor of protecting the redress rights of individual workers that it has become vulnerable to abuse. Many managers adopt a "why bother" attitude to problem performers rather than comply with the onerous requirements of the redress system.

GAO also found that the demands of the system pressure employees and managers to settle cases regardless of merit to avoid potential costs.

According to GAO, alternatives to the current redress system exist in the private sector and should be studied as potential models for the federal system.

GAO makes a number of good points. The government has instituted a Byzantine system to protect employee rights. There are four independent agencies that can hear employee complaints or appeals of agency personnel actions: the Merit Systems Protection Board (MSPB), the Equal Employment Opportunity Commission (EEOC), the Office of Special Counsel and the Fair Labor Relations Authority.

Each of these agencies has jurisdiction over specific situations. Because the lines of demarcation among these four are murky, any case could end up being heard by more than one—a time-consuming process.

One consequence of this system is that feds file workplace discrimination complaints at about 10 times the rate of private-sector workers.

One example of jurisdictional overlap in the redress system is what GAO calls a "mixed case." A tenured federal employee who has been fired, demoted or suspended can appeal to MSPB. If the same employee feels discrimination caused an adverse action, the case can also go to the EEOC. If the EEOC finds in favor of the employee when the MSPB does not, the two agencies must try to reach an accommodation, which they usually do.

Feds covered by collective bargaining agreements have yet another avenue. They can ask for a hearing before an arbitrator and then follow through with an appeal to MSPB, the EEOC and so on. As GAO points out, an employee has little to lose in asking as many agencies as possible to review his case.

GAO said Congress, in its desire to provide a fair and equitable system for feds to appeal inappropriate actions, has tilted the balance in favor of workers.

GAO believes the unpleasant prospect of having to deal with a host of time-consuming procedures to resolve employee complaints has a direct impact on managers. Managers and supervisors interviewed by GAO said they duck taking action against employees because of the complexities of the redress system and the "rights" employees have built up over the years.

Feds have substantially greater employment protection than their private-sector counterparts, according to GAO. In the private sector, you can only appeal within your company. Unhappy with the results? Go to court. There are no independent agencies that will help you, with the possible exception of the EEOC, if discrimination is involved.

GAO points out that in the private sector, many firms have resorted to alternative dispute resolution systems. These can involve outside arbitrators, company ombudsmen or committees composed of employees and management who decide the merits of a case.

GAO advocates studies of such private-sector mechanisms to determine whether they can be used by the government. Naturally, if Congress agrees with this recommendation, guess who will do the studies? You got it: GAO.

This provides job security for GAO staff members but does little to deal with the problem. The government has been studied to death and look at the mess it's in right now.

Feds have more rights than private-sector employees because private-sector employees are managed by individuals held accountable for their performance. Consequently, if they take action against an employee, it's probably because the employee is performing in a way that affects the bottom line.

Private-sector managers also realize that they cannot reach their goals unless their workers are happy and well-motivated, so managers do not deal with employees in an arbitrary and capricious manner.

I realize this is not a perfect world, and there are plenty of abuses in the private sector. But from my experience, the government has created a very fertile environment for employee abuse. Federal managers are rarely disciplined for the failure of their subordinates to meet specified goals. Indeed, the goals set for managers are so fuzzy that it's almost impossible not to meet them.

Feds, I believe, need more protection than private-sector employees because federal supervisors and managers tend to be more abusive than their private-sector counterparts. GAO ignores this reality completely. All GAO is doing is plugging for more work for its staff.

The only value I see coming out of this review is more work for GAO and very little benefit for feds.

**

Bureaucratus is a retired federal employee who is a regular contributor to FCW and the author of Bureaucratus Moneyline, a personal finance newsletter for federal employees, available by subscription on FCW's Web page at http://www.fcw.com. For more information, contact Bureaucratus at bureaucratus@fcw.com.

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