The many agencies which have four- or five-level performance appraisal systems typically have a level between Fully Successful and Unsatisfactory they call Minimally Acceptable or something similar.
This is not a new phenomenon but one left over from the multiple-level performance appraisal systems that most agencies had in place prior to August 1995, when the U.S. Office of Personnel Management (OPM) published final regulations in the Federal Register permitting agencies to use “Pass/Fail.”
The law (Chapter 43 of Title 5) authorizes agencies to remove or downgrade an employee who fails one or more critical elements and is rated Unsatisfactory if he/she fails to improve after being placed on a Performance Improvement Plan (PIP) and given a reasonable opportunity to demonstrate the level of performance specified in the PIP.
But does the Unsatisfactory employee have to improve to the Fully Successful level or equivalent? In many agencies, the answer is NO. Instead, the employee only has to improve to the Minimally Acceptable level. Management can withhold periodic within-grade increases at that level of performance, but if employees are willing to live with such a consequence, they can keep their jobs.
While the goal of agency management is to help poor performers get back to being fully productive, I have seen supervisors spend a great deal of time and energy trying to help employees improve their performance to Fully Successful, only to see those employees cling tenaciously to or near the Minimally Acceptable level. In other words, I question a supervisor’s “return on investment” in working with chronically poor performers.
My question: Does it make sense for a supervisor to say, in effect, to an employee – “Your performance this year was truly atrocious, but with some hard work on your part and my assistance you may be able to achieve genuine mediocrity.”? I don’t think it does.
Let’s examine the definition of Minimally Acceptable or equivalent in a few agencies. For example, the U.S. Department of Interior’s performance appraisal guidance for senior professionals reads as follows:
“Performance is between the levels described for Fully Successful and Unsatisfactory. Overall performance was marginally acceptable and occasionally less than Fully Successful. The employee had difficulties in meeting performance expectations. Actions taken by the employee were sometimes inappropriate or marginally effective. Immediate improvement in performance is essential.”
Interior’s definition of Minimally Successful as it applies to the rest of the workforce is very similar:
“Performance is between the levels described for Fully Successful and Unsatisfactory. Overall performance was marginally acceptable. Assignments often required extra assistance or revision from supervisor or peers. Organizational goals were met only as a result of close supervision.”
The Department of Health & Human Services defines Minimally Successful as follows:
“The employee had difficulties in meeting expectations. This is the minimum level of acceptable performance for retention on the job. Improvement is desirable. Examples include:
- Occasionally fails to meet assigned deadlines;
- Work assignments occasionally require major revisions or often require minor revisions;
- Application of technical knowledge to completion of work assignments is not reliable in many cases;
- Occasionally fails to adhere to required procedures, instructions, and/or formats in completing work assignments;
- Occasionally fails to adapt to changes in priorities, procedures, or program direction; and/or
- The employee has minimal impact on program performance, productivity, morale, organizational effectiveness and/or customer satisfaction.”
Let’s now look at what happens when an employee has been rated Unsatisfactory. Here is an excerpt from an OPM sample letter to an employee who has failed two critical elements:
“This notice is written confirmation that I am providing you with an opportunity to improve your performance to the Minimally Successful level. I have determined that your performance is unacceptable in two critical elements of your position, and therefore, a performance improvement plan (PIP) is required… The PIP outlines activities that you must complete to attain a Minimally Successful rating on the two critical elements in which your performance has fallen to an unacceptable level. If you have any concerns about the PIP or you require additional guidance in following it, please let me know as soon as questions arise.
…By the end of the opportunity period, you must have brought your performance up to at least the Minimally Successful level on the elements in which you are currently unacceptable in order to avoid a reduction in grade, removal, or reassignment. This PIP is to assist you in reaching that objective.”
In most agencies, an employee who fails one or more critical elements is only required to improve to the kind of Minimally Successful performance described above by Interior and Health & Human Services. Is that really the level of performance Federal agencies should have to tolerate? As I see it, for Federal agencies to be required to maintain employees in good standing when they have “achieved” the level of mediocrity captured in the definitions of Minimally Successful is ridiculous.
As a human resources (HR) advisor to management in six different Federal agencies and as an HR consultant and trainer for the last dozen years, it has been my experience that most Federal agencies have a very difficult time dealing with performance problems. The causes include inexperienced supervisors and those who dislike confrontation (which, I think, would include most of us), or an agency culture in which managers don’t support actions proposed by supervisors, thereby almost insuring that a supervisor will not try to take such an action a second time.
The system itself also comes in for much criticism. While the standard of evidence in performance cases is “substantial,” a lesser standard than the “preponderance of evidence” required to support conduct-based adverse actions, I know of several agencies which have had such a difficult time winning employee appeals to the Merit Systems Protection Board on performance-based actions that at least some members of their legal staff have encouraged supervisors and HR advisors to take performance cases via the conduct route. That is perfectly legal, although I would not do it if I were convinced the employee was incapable of doing the work.
What, if anything, can be done about the Minimally Acceptable performance level? My fellow FedSmith.com author Robbie Kunreuther, an HR theorist, has long argued that any performance below Fully Successful should, by definition, be considered Unsatisfactory. I couldn’t agree more, and that is how it would work in agencies with three-level performance appraisal systems, at least those I have seen in which employees are rated Outstanding, Fully Successful, or Unsatisfactory, or the equivalent of those terms.
I believe that the vast majority of Federal agencies currently have four- or five-level performance appraisal systems. Five-level systems are problematic, as illustrated by a U.S. Merit Systems Protection Board (MSPB) decision titled Robbie D. McGowan-Butler v. Department of Justice
, November 30, 2007.
In that case, theagency removed the appellant for unacceptable performance in two critical elements. On appeal, the administrative judge (AJ) reversed the action, holding that one critical element was invalid because it did not define the Minimally Successful level of performance that is required to avoid removal. The majority denied the agency’s petition for review, allowing the initial decision to become final.
Then-Chairman Neil A.G. McPhie issued a separate, dissenting opinion, in which he wrote:
“An agency may choose to have from two to five levels in an employee’s performance standards. 5 C.F.R. §§ 403.206, 430.208(d). The Board has held that under a five-level system, an agency must define the Minimally Successful level of performance, because an employee cannot be removed or demoted for performance meeting that threshold; again, only “unacceptable” performance can form the basis for an action. Donaldson v. Department of Labor
, 27 M.S.P.R. 293 (1985); see also Jackson-Francis v. Office of Government Ethics
, 103 M.S.P.R. 183 (2006) (an employee working under a five-level system cannot be removed or demoted for failing to meet the Fully Successful level of performance).” (emphasis added)
As for those agencies with four-level performance appraisal systems, I’m not aware of any that don’t also have a Minimally Successful level or equivalent.
I cannot find anything in the law which requires non-SES performance appraisal systems to have a Minimally Successful level or equivalent. Thus, it appears to me that the law wouldn’t have to be changed to address this situation. I believe that agencies with five-level systems could opt to go to four- or three-level systems and that agencies with four-level systems could designate those levels to be something like Outstanding, Significantly Exceeds Expectations, Meets Expectations and Unsatisfactory.
In any event, I think it would be wise for the agencies to state explicitly that performance below Fully Successful would be considered Unsatisfactory.
I would like to see OPM lead such an effort, but I see no reason why agencies couldn’t choose to make those changes on their own. I do recognize that it’s easier said than done, particularly in agencies in which performance appraisal systems have been incorporated into collective bargaining agreements (CBAs).
Eliminating the Minimally Acceptable level in agency performance appraisal systems would by no means solve the multi-faceted problem of dealing with poor performance, but it would certainly be a significant step in the right direction.