Why Not Taking Performance Actions is a Big Deal

By Barbara Haga, February 13, 2019

I am shaking my head again. I was told by a supervisor in a recent class that one of his supervisors had called the servicing HR office in December about initiating an opportunity period for an employee whose appraisal cycle ends on March 31. He was told that he was too late and couldn’t do one.

I really am at a loss. This is a responsible non-bargaining unit position, the employee was relatively new in that job, although he had been a Federal employee for a few years, and they had a lot of examples of how the employee was not performing at the level necessary.

There is nothing in their appraisal system that sets any limits on when an action could be initiated. It is a mystery to me what would have been necessary to satisfy this HR practitioner that they could and should proceed.

Back to Basics

5 CFR 432.104, entitled “Addressing unacceptable performance,” states:

At any time during the performance appraisal cycle that an employee’s performance is determined to be unacceptable in one or more critical elements, the agency shall notify the employee of the critical element(s) for which performance is unacceptable and inform the employee of the performance requirement(s) or standard(s) that must be attained in order to demonstrate acceptable performance in his or her position.

The first phrase is relevant to this discussion.  The regulation says “at any time” during the cycle. It doesn’t say “at least 90 or 120 days before the end of the cycle” or “by some arbitrary date set by the HR office prior to the end of the cycle” or “the employee has to be warned at the progress review.”  It just says the employee may be notified at any point during the cycle.

I read the regulation in 430 to say that a cycle may be extended if needed in order to prepare a rating (which could include completing a PIP in my book). 5 CFR 430.208(g) states, “When a rating of record cannot be prepared at the time specified, the appraisal period shall be extended.  Once the conditions necessary to complete a rating of record have been met, a rating of record shall be prepared as soon as practicable.”  My take is that a PIP could be initiated on the last day of the cycle.  To me that’s better than giving the employee (and I chose that verb for a reason) a rating they didn’t earn.  It’s a gift that can come back to bite later.

The View from Outside HR and Legal

When HR practitioners advise, sometimes that advice can come back to roost in the future. If you advise managers not to take action or that they can’t take action, sometimes they learn to stop calling you. They may reach the conclusion that the HR or Legal staff is not able to support them (or fill in unwilling, untrained, unmotivated, etc.)

Recent history would seem to tell us that this is the perception across government.  Witness the OMB Directive M-17-22 issued on 04-12-2017 entitled “Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce.”  While many were very excited about the second part of the title, I think there wasn’t much attention paid to the part about reform.  One portion of the directive had to do with performance. Section III, Para D iii directed agencies to “Develop a plan to improve the agency’s ability to maximize employee performance.” Agency responses were due at OMB by June 30, 2017. You can check and see what your agency did with it. The list of required actions included:

• Review policy, procedures, and guidance on how to address poor performance and conduct.
• Remove any unnecessary barriers to addressing performance, eliminating steps not required by statute or regulation.
• Set a date by which all supervisors will be provided a copy of rules and guidance regarding PIPs, including timing of PIPs and use of Chapter 75 procedures.
• Ensure all managers and HR staff are appropriately trained on managing employee performance and conduct.
• Establish real-time manager support to assist them in taking needed actions.

If that isn’t a clear signal that the Administration perceives that HR practitioners are not doing what needs to be done, we could turn to Executive Order 13839, which echoed some of the same themes. Even though the two other EOs issued last May were largely enjoined by the DC Circuit decision from last August, very little in 13839 was found invalid.  What did that order direct agencies to do regarding performance actions?  Here’s part of the list:

• Minimize burden on supervisors.
• Eliminate pre-demonstration period requirements.
• Eliminate any requirement to use 432 procedures and use 752 when appropriate.

I read these two documents to say that HR practitioners need to do a better job helping managers hold their employees accountable – whether it is drafting notices in a timely manner, not agreeing to extra steps with unions, or using the right tool for the problem.

If that weren’t enough, the hits just keep coming.  On July 16, 2018 a coalition of the Senior Executives Association, Federal Managers Association, and other manager associations provided input to House Oversight and Government Reform Government Operations Subcommittee on what they thought needed to be done to fix the civil service system.  They had numerous recommendations, including implementing pay banding and merit pay, and also to:

• Eliminate the statutory requirement that creates Performance Improvement Plans (PIPs), and the really scary one …
• Provide funding for an online playbook with information on how to handle adverse actions, performance problems, improving employee morale, and other areas supervisors may need guidance.

Why are these manager groups asking for funding for an online tool to help them deal with their employee relations issues?  Could it be that they don’t think they are getting good service from the human beings who presently are supposed to be providing these things?  Could it be that they are tired of being told you can’t do this or that?  Could it be that it takes too long to get the actions prepared?

The Current Case

So, what about the manager who wanted to take action but was told he couldn’t?  The HR office may have thought they dodged an action, but this case is not going away.  As it happens, the manager who asked about initiating the improvement period departed.  A new supervisor is now in place dealing with this employee. I am convinced that this supervisor will persist in getting this person to perform or will take action.

However, the new manager is starting out behind the eight ball.  Because the HR office advised that an action could not be initiated in December, that departing supervisor had to complete a close out rating.  And, because according to HR nothing could be done to take this person to task for the poor performance, that rating was a Fully Successful (their system doesn’t have a Level 2).  Their system makes that close out rating the rating of record when there are not 90 days remaining in the cycle.  So, the EPF is going to include an unearned Fully Successful rating for this year.  The new supervisor will have to confront the inevitable questions if there is an action down the road about why this person was rated FS by the prior supervisor and why this employee’s performance is not good enough anymore.

The bad advice from last fall is going to add extra complication for the manager and HR to resolve this situation down the road if there is a 432 action.  This is sad – and completely unnecessary. Haga@FELTG.com