Answering OMB’s April 2017 Directive

By Barbara Haga, May 2, 2017

I am chalking this column up to doing my patriotic duty.  OMB Directive M-17-22, Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce, dated April 12, establishes a number of initiatives for changing what work is done and how work is done within the Federal government.  Agencies have a deadline of June 30, 2017 to prepare a plan to maximize employee performance.  Paragraph D.iii.1 requires that agencies review their procedures for dealing with poor performance and conduct and to “… specifically review whether their policies create unnecessary barriers for addressing poor performance.”  OMB is requiring agencies to remove steps not required in statute/regulation to streamline processes for dealing with poor performance and to establish clear guidance on the use of PIPs.

I have seen many of these “unnecessary barriers” that are included in agency performance plans and union contracts in the past ten years, so I am making a list of what needs to be eliminated.  Of course, for some of you this will mean bargaining your way out of things that someone agreed to in the past.

Barbara’s Top Four

Being in this top four list is not a good thing.  These are things that either drag out the process, allow employees to get away with doing less, create extra hoops for managers, or give employees more things to challenge through the grievance process.  We don’t need any of that.

1. Setting a time frame for a PIP. There is nothing in 5 USC 43 or 5 CFR 432 that establishes a minimum time frame for a PIP.  Why would an agency do so?  Should it not be what is reasonable for the position?  One agency I have worked with has established a five month improvement process – a 30-day pre-PIP and then 120 days of an actual opportunity period.

If it is a GS-6 Accounting Technician who is performing hundreds of transactions in a month is 30 days not enough?  If is a GS-14 Aerospace Engineer at NASA working on design of a new spacecraft, maybe we need 90 days to get enough results to be able to make a determination whether the level of performance has improved.  It depends on the complexity of the work.

What difference does it make if we HR practitioners are just overly cautious and make a PIP extra long?  The longer the PIP the more burdensome it is on the manager who is supervising the employee.  Believe me, I know.  I have done two of these actions on employees who worked for me.  Remember what a PIP is – the employee is performing normal work assignments in as normal a work situation as the manager can provide.  However, the manager has to review the work on the elements under which the employee is on notice, determine what is correct and what isn’t, document all of that, and burn up the copy machine keeping copies of all of that work – all while doing everything she would normally be doing, meeting frequently with the employee on the PIP and keeping notes about that, and not being obvious to the other subordinates about what is going on.  It takes its toll.  The employee is, and has been, paid to perform this work and he should be able to perform it.  The managers are not the bad guys in this process, so we shouldn’t put a more onerous requirement on them than what is necessary.

Recommendation:  Revise your performance plan to say what 5 CFR 432.104 says about the length of the PIP:  For each critical element in which the employee’s performance is unacceptable, the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee’s position.

2. Mandating extensive amounts of assistance. We should also remember that the PIP is not intended to train an employee on the work their position requires – they are supposed to have the ability to do the work already.  It is an opportunity for them to show that they can perform at an acceptable level with assistance.  Some agency PIP requirements include reviewing every single piece of work the employee performed, even when it is a higher grade position. I don’t view that as assistance; it essentially is taking on the employee’s responsibilities.  In other words, the work requirements are watered down so much that even if the employee meets the PIP requirements she isn’t performing at grade.

Other agencies include assignment of mentors to the employee in the PIP.  If the employee is already qualified to do the work of the position, why would he or she need a mentor?  If, because of the span of supervision, the manager is stretched too thin to be accessible to the employee and someone is covering that management capacity to give guidance and review results of work, I am not sure the term “mentor” is accurate – work leader sounds more like it.  Mentors aren’t usually supposed to judge – they offer guidance and suggestions.

Recommendation:  Make sure that the performance system does not require anything further than “The employee will be provided assistance, which will include regular feedback from the rater on the elements in question during the PIP period.”  Anything beyond that which the agency chooses to give is just whipped cream on top!

3. Requiring that an Unacceptable rating be assigned. There is no requirement in law or regulation that an Unacceptable rating be assigned in order to take an unacceptable performance action.  In order to propose a downgrade or removal based on unacceptable performance 5 CFR 432.105(a)(4) requires that the notice contain “both the specific instances of unacceptable performance by the employee on which the proposed action is based and the critical element(s) of the employee’s position involved in each instance of unacceptable performance.”  Requiring assignment of a rating does a couple of things.  The worst is that it creates another grievable action (or at least a request for reconsideration depending on your appraisal system) that will be running at the same time that the adverse action is being proposed and decided, using the same evidence that will be reviewed in the 432 action.  No practitioner in his or her right mind should want that to happen.

To assign a rating, you must also meet the minimum appraisal period established in your performance plan.  That is typically 90 or 120 days.  If you were beginning an action near the beginning of a cycle, your PIP would have to be at least that long.

Recommendation:  Eliminate any requirement to assign of a rating of record of Unacceptable at the end of a PIP or in order to proceed to a performance-action.

4. Using Minimally Successful ratings. If your agency includes a Minimally Successful level (Level 2) on the element (summary ratings don’t matter here), then it is time for it to go.   If you have Level 2 then the maximum amount of improvement you can require an employee to reach during a PIP is Level 2 (try reading these cases if you don’t believe me: Jackson-Francis v. OGE, 107 FMSR 73 (2006); Henderson v. NASA, 111 FMSR 173 (2011); and Van Pritchard v. DOD, 112 FMSR 27 (2011).  Your friends at agencies that don’t have a Level 2 rating on a critical element can demand that their employees reach Fully Successful (Level 3) performance to successfully complete their PIPs.

At a minimum, Federal agencies should be able to hold employees to Level 3.  Allowing an employee to hang out at Level 2, potentially for years, and losing just their within-grades and some of their retreat rights in RIF, is crazy. But if you have a Level 2, that’s all you can require.

Recommendation:  Change your element rating scheme to eliminate Level 2 on a critical element.  Level 2 in the summary rating scheme also needs to go if you don’t have non-critical elements.

I wish I had more space.  I could have put together a longer list!  Haga@FELTG.com

Attend a special program on this topic: Maximizing Accountability in Performance Management, July 25 in Washington, DC.