The Patent and Trademark Office's challenges demonstrate the need for the government to modernize its rules defining what it means to perform work. Experts say ...
wfedstaff | April 17, 2015 7:34 pm
The Patent and Trademark Office’s model telework program was shattered earlier this week with a negative report on employee abuses of the system.
PTO’s challenges demonstrate the need for the government to modernize its rules defining what it means to perform work. It also raises another potentially big roadblock that could stymie the growing use of telework.
“I think the complaints that came were basically raising concerns about a shift at PTO, and I think it probably does apply more generally to telework, where there is a shift from the emphasis of working 80 hours in a two-week pay period to doing 80 hours worth of work during that two-week pay period,” said Todd Zinser, the Commerce Department’s inspector general, in an interview with Federal News Radio. “As a result, you have PTO supervisors raising concerns, because they felt the current practice at PTO for accounting for patent examiners’ time weren’t exactly consistent with the regulations and practices they’ve been accustomed to throughout their careers. So I think that is kind of the friction or tension that exists in several of the telework polices. It’s an issue PTO definitely has to address.”
Zinser said PTO sets specific goals for patent examiners to complete a certain number of products during their 80-hour work week or 8-hour day. So if the patent office sets a standard of, say 10 application reviews per 80-hour work week, and an employee finishes in 60 hours, then what are they doing for the other 20 hours? The employee may be committing time card fraud by telling the agency they worked 80 hours.
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That’s why Zinser said PTO’s challenges around defining 80 hours worth of work versus working 80 hours in two weeks is something that every agency faces.
This came to light in a Washington Post story centering on a draft and final report stemming from four hotline complaints to the Commerce inspector general. A team of PTO managers conducted an audit, issuing a draft report in February and a final one in July.
Model program under scrutiny
The draft talks about time and attendance abuses, where workers say they spent 80 hours over two weeks working when, in reality, they may not have, and are putting all their completed work into the system toward the end of their pay period or performance period.
The final report is toned down and talks about challenges around better management guidance on filling out and overseeing time and attendance records and several other less hot-button issues.
“Like any responsible organization in the proper course of business, the USPTO prepares rough drafts, for discussion purposes, of proposed reports and memos. As such, in the normal, thorough process of preparing its response to this and all OIG requests, the agency created rough draft reports for consideration and discussion before reaching a final, signed version of the report,” said PTO chief communications officer Todd Elmer in a statement. “The February 2013 rough draft of the report was an initial attempt to describe the full investigation record. As part of standard protocol, the USPTO’s Office of the General Counsel and the Office of the Chief Administrative Officer jointly reviewed the draft document and concluded that it was incomplete, inaccurate, and that it reflected only a partial characterization of the entirety of the full record. Additionally, both the Office of the General Counsel and the Office of the Chief Administrative Officer considered many of the conclusions reached in the draft report to be partial and unsupported by the facts and record of the investigation and thus counseled that the final, signed, draft of the report contain a more accurate, complete reflection of the entirety of the investigation’s record of interviews and supporting data, which it ultimately did.”
He added PTO’s telework and hoteling programs deliver clear and tangible benefits, despite whistleblower concerns and findings in the audit.
Still, the report is concerning to one influential member of Congress.
Rep. Frank Wolf (R-Va.), chairman of the Appropriations Commerce, Justice, Science and related agencies subcommittee, wrote a letter to Commerce Secretary Penny Pritzker asking for any individuals committing fraud to be referred to the Justice Department for prosecution.
“I am also referring this report to the House Oversight and Government Reform Committee and will ask Chairman [Hal] Rogers (R-Ken.) to consider an investigation by the Appropriations Surveys and Investigations subcommittee to ensure that all resources of the committee are being used to address this matter,” Wolf wrote. “What has happened at USPTO is symptomatic of an agency that has not had leadership for the last 18 months when the last confirmed director left. Because it continues to lack a permanent director, I am asking you to take immediate action to address this matter and to report to the Congress on the steps that have been taken to ensure that this abuse does not occur again.”
Wolf added that this report demonstrates what can happen when an agency fails to hold employees accountable — much less tries to cover up alleged criminal fraud committed by employees from the inspector general’s office.
“I am very disappointed that USPTO, which holds itself up as a telework model for the federal government, has failed to manage this program appropriately,” he said. “I encourage you to take immediate action to hold these fraudulent employees accountable and send a clear message that this abuse will no longer be tolerated.”
But experts say PTO’s alleged failures are less about a program that is out of control and more about a new growing pain for federal telework.
For the last decade, agencies have struggled to finally overcome barriers around management resistance and technology, especially over the last few years. But now this idea of working hours is creating new challenges.
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Zinser said the divide is growing between the official definition of work and how employees view their jobs.
“The problem is that there are rules and regulations that have been enacted in law or regulation about how government employees have to account for their time. I think you are seeing shift in not only the government, but the workforce in general that people are doing their work in different ways,” Zinser said. “And I think the challenge is to adapt the current work environment with the existing regulations. I think PTO thinks they have done that. But obviously based on this report, they still have some challenges ahead to do that. But I think that’s the exact issue PTO is grappling with.”
And as more and more agencies use telework and alternative workplace, the government needs to catch up with how it views work, experts say.
The Office of Personnel Management says in its 2013 telework report to Congress that more than 1 million feds are eligible to telework, and more than 301,000 teleworked in 2012.
Lisa Horn, the Society of Human Resource Management’s director of congressional affairs and the leader of its workplace Flexibility Initiative, said the government hasn’t made the culture shift yet that requires a different point of view about what work is and when it’s done.
“Often times, and maybe this is what’s happening at PTO, organizations don’t have a telecommuting problem, they have a performance management problem,” Horn said. “It can be uncomfortable to hold employees accountable for their performance, but it’s so important, especially in a telework arrangement. Clear goals and objectives need to be set, and employees need to understand those as well as supervisors. There needs to be check-ins toward those goals, and they need to be measureable. At the end of the day, employees need to be held accountable for meeting those objectives.”
Kate Lister, the president of Global Workplace Analytics, echoed Horn’s observations about the need for improving training around management and performance. Global Workplace Analytics provides training to public and private sector organizations on teleworking and alternative workplace development.
The company did a survey last year of the 150 top telework people in government, asking them what obstacles they face, and what opportunities they see. Lister said of the more than 10,000 words that respondents chose to write, many thousand focused on a lack of accountability and enforcement.
Lister said a General Services Administration official once said “telework doesn’t cause problems; it reveals them.”
She said the conflicting rules PTO and others face are that problem.
Blimp on a radar or big blow?
The news that PTO’s model telework program is potentially in trouble could serve as a setback to federal efforts.
Lister says the audit is a big blow the federal telework effort and could be compared to another famous telework-related decision.
“It reminded me of Yahoo recalling their teleworkers last year,” she said. “I probably talked to 50 reporters within about a week-and-a-half about that. And literally every conference I’ve been to or spoken at, that question comes up, “But what about Yahoo?”
Yahoo CEO Marissa Mayer announced in February 2013 that employees could no longer work from home.
Horn said she also cringed when she read the Washington Post story, and it immediately reminded her of the Yahoo decision.
But she said PTO’s problem likely will be just a blip on a radar screen when it comes to the momentum that continues to build for alternative work environments.
She said PTO, like any organization after a report like this, needs to take a step back and analyze what is working and fix those things that aren’t.
“Was it poor performance of the telecommuters? Was it poor management of the supervisors? Was there not adequate technology in place that set the employees up for success? Was there not clear communications around what were the expectations and the deliverables for the employees?” she said. “I think that kind of step back and an honest examination of the processes and policies around the organization’s telecommuting program is key.”
Commerce’s IG Zinser said PTO’s audit will inform future work in his office.
For example, he said his office is auditing the quality of the patent review process to see if the use of “end loading” documents has impacted the quality of the reviews.
Additionally, the investigative side is looking departmentwide at whether or not data exists that investigators can review to see if there are systemic time and attendance fraud issues.
“The pendulum swings and the management resisted this pretty much across the government. It’s common knowledge,” Zinser said. “I think what happened at PTO [is the agency] embraced telework as a key element of their business model, and the pendulum swung the other way. Now based on the work PTO’s done looking at these complaints, the pendulum has to come back the other way. They have to be sure whatever internal controls that are available, and they use those internal controls. They really need to listen to those first line supervisors who are seriously frustrated on trying to follow those rules. They are the first line for enforcing time and attendance. I think PTO has to come up with a way to support those supervisors in a more significant way.”
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