Performance appeals filed by federal employees saw a spike in FY 2012 according to the MSPB’s latest annual report. The Merit System Protection Board’s regional and field offices decided 155 performance appeals, up 41% from FY 2011.
According to federal employment law firm Tully Rinckey, an unacceptable performance rating can have a significant impact on a federal employee’s consideration for promotions, performance bonuses, pay increases, and the amount of retention service credits he or she is allotted in the event of force reductions. “Although the federal government strives to keep performance appraisals as objective as possible, some subjectivity seeps into the system and may influence it. Federal employees deserve to be recognized for the hard work they do, and unacceptable performers need to be properly rehabilitated or disciplined if bad performance does not improve,” said Tully Rinckey PLLC Partner John P. Mahoney, chair of the firm’s Labor & Employment Law Practice Group.
These are some of the reasons why federal employees might consider filing an appeal of a performance appraisal:
- More than 12 months passed since their last meaningful appraisal;
- The performance appraisal system on which their performance appraisal was based were not approved by the Office of Personnel Management;
- The performance appraisal did not take into account the employee’s performance throughout the entire review period;
- The performance standards were improperly absolute, vague, not properly communicated at the beginning of the rating period, and/or they are not consistently applied throughout the agency;
- The agency changed the employee’s rating criteria during the rating period without providing him or her with 90 days notice of such change; or
- The employee’s performance rating was based on an appraisal system that had not been in effect for at least 90 days.
Usually, federal employees can appeal poor performance evaluations through agency grievance procedures or negotiated grievance procedures. If the employee’s performance is rated as unacceptable during a rating period, he or she is supposed to be afforded a reasonable Performance Improvement Period (PIP), including additional assistance and guidance from the rating official aimed at improving the employee’s performance on his or her critical performance elements. If the employee’s performance does not improve following the PIP, federal agencies are supposed to remove him or her from federal service or demote him or her to a lower grade level.
An employee who has been removed or demoted for performance reasons is typically afforded the right to appeal that adverse action to the MSPB. In the case of removal, the employee will want to make sure the performance issues cited in the Notice of Removal match those in the Notice of Unacceptable behavior. If otherwise, the employee may not have received a meaningful opportunity to improve his or her performance. And just because an agency acts as though its performance appraisal system received OPM’s approval, does not mean that is always true.