Let’s Address the Misconceptions About Poor Performance

By Deborah Hopkins, November 14, 2018

If there’s one thing that bothers federal employees more than anything, it’s slackers in the workplace. And if there’s something even worse than that, it’s the supervisors who refuse to deal with slackers in the workplace. I’m not making it up. Last month, OPM released a Federal Employee Viewpoint Survey that showed around 70% of federal employees do not believe that supervisors take the steps necessary to deal with poor performers. This isn’t breaking news; some version of this concept remains one of the highest negative ratings measured each year.

In the federal government, only about 5% of the 10,000-plus removals annually are for poor performance; the rest are for misconduct. But did you know that it’s almost always easier to remove a poor performer than it is to remove an employee who engages in misconduct?

But Deb, my HR office told me performance removals are really hard. They said I need months of performance tracking, then loads of evidence to start a PIP. Pus at my agency, we do 90-day PIPs, during which I have to double-check everything the employee does. Plus I have to give the employee a chance to get better every week. After all that, I need tons of evidence of all the failures during the PIP before I can even propose removal. I don’t have that kind of time.

Well, if all that were true I wouldn’t have that kind of time either. But that entire statement is full of myths. Ready for me to make your day? Read on.

Performance-based actions DO NOT require months of performance tracking. In fact, as long as the employee has been on her performance plan for around 60 days (known as a warm-up period), you can put her on a PIP (Performance Improvement Plan) after only one or two instances of unacceptable performance on any critical element. You do not need a pattern of unacceptable performance, or a minimum number of mistakes. Read the performance plan and look at the standards for “Unacceptable” on each critical element. Depending on how the plan is written, one instance of unacceptable performance may be enough to trigger the PIP.

Here’s an example:

Critical Element 1: Answers the telephone

• Performance Standards

Acceptable: Answers within three or fewer rings

Unacceptable: Answers after more than three rings

As soon as that employee answers the phone after 5 rings, you can PIP her. Boom.

Putting someone on a PIP does NOT require tons of evidence. Did you know the amount of proof you need to put someone on a PIP is so low that there’s not even a name for it? At FELTG, we call it an articulation of the reason. So what does an articulation look like? “The employee answered the phone after five rings and the acceptable level is three rings or fewer.” That’s it. As a defensive strategy, we recommend making a note to yourself that day with what you observed, just in case down the road the employee challenges you on why you put her on the PIP; that contemporaneous documentation will be a helpful memory jogger and a solid piece of evidence for the judge or arbitrator to consider in addition to your testimony. Update: As of March 11, 2021, the agency is now required to show substantial evidence of unacceptable performance in order to justify the PIP – more than an articulation.

During the PIP you do NOT have to baby-sit your employee. The regulation requires you to “offer assistance” to the employee during the PIP. 5 CFR 432.104. Assistance is not doing the work for the employee, assigning a mentor, lowering the standard, or double-checking everything the employee does. We know from the case law that offering assistance means providing feedback to the employee during the course of the PIP. At FELTG, we recommend our legal clients meet once a week with the employee during the PIP, but the MSPB has found that even just one or two meetings during the course of a PIP meets the regulatory assistance requirement.

You do NOT have to give the employee a chance to improve during the PIP.  The name “Performance Improvement Plan” is really a misnomer that has caused all kind of confusion. Back in the early ’80s, OPM created the acronym “PIP” (first, Performance Improvement Period, then Performance Improvement Plan) in reference to the period mandated by law for a demonstration of acceptable performance prior to removal. It takes much less time for an employee to demonstrate whether he can do his job than to see if he can improve in doing his job.

President Trump’s Executive Order, referenced above, clarifies what the law says by dropping the concept of an “improvement” period for poor performers and instead uses the legally correct term “demonstration” period. So while most agencies still call it a PIP, the more correct terminology would be Opportunity Period (OP), Demonstration Period (DP), or what our friends at HHS are calling the Opportunity to Demonstrate Acceptable Performance (ODAP).

The PIP does NOT have to be 90 days. FELTG recommends a 30-day PIP regardless of the employee’s job type or GS level. Never, ever, ever in the history of the MSPB, even when former union attorneys were running the place, has the Board found a 30-day PIP to be too short. Towne v. Air Force, 2013 MSPB 81. If that’s not enough for you, take a look at the President’s May 25 Executive Order 13839, which says the performance demonstration period should “generally” be no more than 30 days. Why “generally”? Well, if your union contract requires 90 days, then you’re stuck with 90.

However, it’s perfectly legal to end a PIP early due to the error rate. See Luscri v. Army, 39 MSPR 482 (1989). For example, your employee is a security screener and the PIP says he cannot let any guns get onto an airplane, and on day 5 he lets a gun get onto an airplane. You can end the PIP there. Why on earth would you allow him 25 more days to let MORE guns onto planes? Which leads me to my next point.

Removal for failing a PIP does NOT require a high level of evidence. In fact, it requires less evidence than a misconduct removal. In performance, the level of evidence is called substantial. Substantial evidence is that which a reasonable person might accept [not would accept] to support a conclusion relevant in an unacceptable performance action – even though others may disagree. 5 CFR 1201.56(c)(1). So if you think the employee answered the phone on the fifth ring, that’s enough. You don’t need three witnesses, a customer complaint, and video evidence showing what she did. How about a squishy critical element like “Professional Conduct” that isn’t quantifiable? If you think the person’s performance is unacceptable as applied to the standard, even if another person might disagree with you, that’s enough.

Contrary to what you might hear or read, I actually don’t think the civil service system is broken and inefficient; it’s just being used improperly. Streamline the process and you, too, can get a poor performer out of the workplace in 31 days. We’ve done it hundreds of times in the last 40 years and would be happy to show you how. Your other employees will thank you, and America will thank you too. Hopkins@FELTG.com