Representing Federal Employees for 25 Years in Performance Improvement Plan Cases
Performance Improvement Plans (PIPs) are a dangerous proposition for federal employees. Federal employees who realize that a PIP is being considered, should be wary and consult with an attorney early on to make sure they maximize their chance of surviving a performance-related action. In our experience, an employee being put on a PIP is usually heading towards more serious disciplinary action, such as demotion or removal.
Federal employees often will be told that a PIP is only designed to benefit them and make them better performers. Managers often promise employees that they will be given special assistance to ensure they are successful during a PIP period, only for the employees to find themselves facing a potential demotion or removal some months later having not received any of the promised assistance during the process. In fact, Chapter 43, the statute that allows for performance-based discipline, was designed to make it easier for agencies to remove employees for performance issues. In many ways, the deck is stacked against the employee when facing a PIP.
It is important for federal employees to realize there is an extremely high removal and demotion rate when a PIP is initiated by a federal agency. Federal employees generally do not realize the very serious process that occurs during a PIP, or the performance evaluation that often comes first, until it is too late to effectively pass the PIP. For this reason, it is crucial that federal employees on PIPs, or those who have just received a poor performance evaluation, consult with an attorney who is familiar with these areas as soon as possible.
Opportunity to Improve
If an employee is said to be having performance issues, before an agency can take any action to demote or remove the employee, the agency must notify the employee of the concern and give the employee an opportunity to improve. This is made mandatory by Chapter 43 of the United States Code. This notification and opportunity to improve is usually accomplished by the agency placing the employee on a PIP. Through the PIP, the agency must inform the employee what performance is not acceptable, what critical performance element is at issue, what standard the employee must meet to be found acceptable, and provide a warning to the employee that if their performance does not reach an acceptable level, the employee could be demoted or removed.
Before a PIP is ever put in place, the agency must issue the employee performance standards. These standards are established annually based on an employee’s position description. Chapter 43 requires agencies to provide employees with performance standards and the critical elements of their position at the beginning of each performance cycle. There are three types of performance elements: critical, non-critical, and additional. Only those elements identified as critical can serve as a basis for disciplinary action under Chapter 43. It is important that employees review these standards carefully each year that they are issued because it is these standards that would serve as a starting point for a PIP later on if performance issues arise. If an employee has concerns about these performance standards, such concerns should be raised as soon as possible, ideally before any performance issues develop.
The key element of the PIP is the establishment of a formal opportunity to improve period. This is essentially a stated period of time, usually thirty to ninety days, where an employee must improve their performance to an acceptable level. During this improvement period, the employee must be given a true opportunity to show their capabilities in the position. The Agency must also provide assistance to the employee during the period to help the employee meet the performance expectations. The nature of the assistance provided can vary, but some degree of assistance must be offered and made available to the employee.
What a Reasonable PIP Looks Like
A PIP is rarely a good thing, but when one is issued, there are some things that can make it a better PIP for the employee when it comes to allowing the employee to be successful. If an employee receives a PIP, the employee should make sure that the PIP does the following things:
- Clearly state in detail what performance is expected and how it will be measured.
- Specify the assistance the agency will provide. Assistance can involve on-the-job training, formal class training, mentoring by a more successful employee, more frequent feedback, among others.
- Specify a person who is responsible for helping the employee through the performance improvement period and indicate how often this person will meet with the employee. Generally, an employee should be offered weekly meetings to check-in on progress and performance during the improvement period.
- Address what the employee should do if the employee has questions or does not understand something related to the PIP.
- Identify how long the PIP will remain in effect.
- Outline the possible consequences if the employee’s performance does not improve.
If the PIP does not include these items, the employee should follow-up with the Agency to make sure that all this information is provided before the PIP begins.
Ways Agencies Can Go Wrong During PIP Process
While the agency has a lot of power in the PIP process, there are some common pitfalls that agencies run into that can help employees later. One major area that can be found to negate a PIP or PIP-based disciplinary action is the agency failing to provide the assistance promised in the PIP. If an Agency fails to provide promised assistance, such a failure can result in the disciplinary action being overturned by the Merit Systems Protection Board (MSPB). Similarly, if an Agency does not provide clear performance standards that are understandable, such can also be the basis for a reversal of the action. Moreover, a supervisor can impede the employee’s improvement by failing to give meaningful feedback. Such action by a supervisor, which interferes with the employee’s opportunity to improve, has been found to warrant a reversal of the disciplinary action that stemmed from a PIP.
Recently, there has been a new requirement imposed on agencies by the courts related to PIPs. Courts began to realize that agencies would set employees up with frivolous or retaliatory performance improvement plans (PIP) to get the ball rolling on the removal process. Based on this realization, the courts created a new requirement for agencies. Agencies must now prove that the employee’s performance was deficient before placing the employee on the PIP, not just during the PIP period. In other words, agencies cannot as effectively slap employees with a PIP without justification (as they routinely did before to start setting you up for removal). Moreover, it is possible to show that placing you on a PIP in the first place was unlawful retaliation or discrimination. While this new requirement has leveled the scales somewhat for employees, unfortunately, unjustified PIPs still happen.
What To Do if Placed on a PIP
There are a few things that an employee can do once receiving a PIP to give themselves the best chance at being found successful. Those things include:
- Providing a response to the PIP. While the PIP doesn’t afford a traditional response process, an employee can always put together a response nonetheless. In such a response, the employee should identify any concerns with the PIP and provide examples, if they exist, of how the employee has been performing successfully on the elements at issue.
- Don’t wait to start demonstrating improvement. Even if the employee disagrees with the PIP or the alleged performance concerns, the employee should start working on meeting the performance expectations outlined in the PIP. Waiting too long to address the performance issues can sometimes lead to the employee running out of time in the PIP process.
- Document everything. Once a PIP is issued, one of the employee’s best tools is documentation. For all tasks completed relevant to the PIP, the employee should save documentation showing the task and its completion. The employee should also keep a log of all assistance received and all feedback provided by the supervisor. As mentioned above, if an agency fails to provide feedback or assistance, it can impact the agency’s ability to move forward with disciplinary action.
- Request an Accommodation. If the employee believes that the performance issues are related to a disability, the employee should request an accommodation as soon as possible. The accommodation will not stop the PIP, but ideally, the accommodation will allow the employee to be better able to meet the performance expectations outlined in the PIP.
- Keep an eye on the use of leave. An employee can use leave during a PIP period. An employee on approved leave (annual, sick, or leave without pay) cannot be penalized for work that is not completed while on approved leave. Also, if an employee is on leave for an extended time during a PIP period, the PIP period may need to be extended to give the employee a meaningful opportunity to improve.
What Happens After a PIP
The result of the PIP process will depend on the employee’s performance at the conclusion of the PIP period. If the employee has been deemed to have an acceptable level of performance, there is no need for any action except to continue providing feedback and encouragement to the employee. Keep in mind that an employee can essentially be on probation for up to a year after being notified of the unacceptable performance. Even after the PIP or improvement period ends and the employee has gotten their performance to an acceptable level, if management later decides that the employee’s performance has fallen below the acceptable the Agency can issue a proposed demotion or removal action without further PIPs or opportunities to improve. This is the case for one year from the date the PIP was issued.
If the employee is still performing unacceptably, however, the next step is for the proposing official or supervisor in charge of the PIP to determine the best solution. The options include reassignment, demotion, or removal. If the employee is proposed for removal, he or she can be removed in a very short period after the decision on the PIP. Keep in mind that both at the Agency and MSPB levels there are no requirements to issue or consider Douglas or other mitigating factors.
Post-PIP Disciplinary Action
If following a PIP, the agency decides to issue disciplinary action, the employee will then need to navigate the disciplinary process. The disciplinary process usually involves the employee receiving a proposed action, obtaining the materials relied upon by the agency in issuing the proposed action, and being given an opportunity to respond in writing and orally. An employee is entitled to have legal representation during this process. After the employee’s reply is submitted and considered, the Agency will make a final decision. If the final decision results in the employee’s reassignment, demotion, or removal, the employee may be able to appeal the decision to the Merit Systems Protection Board.
When facing a PIP-related disciplinary action, there are some key defenses for federal employees such as the following:
- The Agency gave no meaningful assistance to the employee during the PIP period even though they said they would;
- The Agency said the employee did not perform well on the PIP even though its issue or problem with the employee’s performance was not even listed in the PIP;
- The Agency designed a PIP that is impossible for any employee to pass; or
- The Agency made errors where one can elicit testimony or evidence that shows there was a conspiracy to essentially fail the employee; or
- The Agency placed the employee on a PIP without proper justification.
Contact Us
Federal employee performance issues are extremely individual in nature and vary from case to case. A number of issues may arise in the context of PIPs and other performance actions by federal agencies, which is why it is important for an individual to seek legal advice early on in the process.
Berry & Berry, PLLC represents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to schedule an initial consultation regarding performance and other federal employment issues.
