Can a Fed be fired for poor performance?

Firing a federal employee for performance can be done but it isn’t quick or easy.

In the latest issue of Issues of Merit, the newsletter issued periodically by the Merit Systems Protection Board (MSPB), the MSPB addresses the issue of how to fire a federal employee for poor performance.

Unlike most small businesses and many private sector companies, a federal employee can’t be easily or quickly fired for poor performance. In this second part of a two part series, the MSPB lists what is required to fire a federal employee based on performance.

As most federal employees know, there are laws, rules, regulations and case decisions that all come into play on federal employment issues. With that many players and layers of administration, you would expect that taking an action against an employee isn’t quick or easy. Your expectations won’t be dashed–firing an employee for performance is not quick or easy.

Before an employee can be shoved out the door, the agency has to take a number of actions according to the MSPB. These include:

–Inform the employee of the critical job elements in which he is deficient;

–Tell the employee what is required under those critical elements;

–Tell the employee that failing to meet these requirements may lead to being demoted or fired;

–Provide the employee an opportunity to improve her performance;

–Help the employee improve.

Finally, after all is said and done and if the employee is actually removed for poor performance, the appeals process begins.

The MSPB newsletter explains in a little greater detail what some of these procedural requirements mean in practice. (You can download the July issue of the MSPB newsletter from the link on the left hand side of this page.)

You may be wondering how long this process of removing a federal employee for poor performance may take. While the Issues of Merit newsletter does not address the issue, a typical performance-based action can easily take 1-2 years from the date the supervisor decides there is a performance problem until the effective date of the removal. There are a number of reasons for this including working out performance standards that will withstand the review of the MSPB (or an arbitrator) when an appeal is filed.

And how many appeals of performance actions are taken before the MSPB? Not many. Former MSPB official William Wiley wrote in FPMI’s Labor and Employee Relations Update newsletter recently that the Board receives about 10,000 appeals a year and less than 100 of these are unacceptable performance actions.

On the other hand, agencies do take action against poor performers in other ways. Some resign or retire under pressure. In other cases, the agency finds it easier and quicker and less difficult to handle an appeal by taking another action against the employee and which is not based solely on performance.

For example, the employee may not come to work on a regular basis in addition to not doing much work while sitting at his desk. It is usually easier to prove the employee didn’t come to work than it is to meet the requirements necessary to fire an employee for poor performance.

So, while the real problem a supervisor or manager may be facing is a performance issue, the event that actually results in the the firing is likely to be a conduct issue rather than performance.

If you are a supervisor or manager with a performance problem, you will obviously want to talk to your human resources advisor before starting down this road that will likely end up in a hearing if you go through with the action. If you are an employee facing a performance-based action, you will want to talk to your union representative or hire a good attorney with a specialized practice that focuses on these types of cases.

For those with an insatiable thirst for knowledge, the February 2003 issue of Issues of Merit contains the first part of the article on performance based actions. You can also download the February issue of Issues of Merit from the link on the left hand side of the page.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47