At the outset of a seminar focused on performance and conduct issues, I ask participants, “Have you ever worked with someone who was being paid 2 grades higher than they could actually perform?”
Uneasiness fills the room. Heads nod, eyes roll, and knowing glances are exchanged as the question is considered.
The Office of Personnel Management’s (OPM) most recent survey results show that only 5.5% of Feds believe that “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve.”
The reasons for this perennial failing are numerous; however, ignorance regarding the process shouldn’t be one of them.
The Code of Federal Regulations is every agency’s source document. 5 CFR § 432.105 (a) (1) states the following:
Once an employee has been afforded a reasonable opportunity to demonstrate acceptable performance pursuant to§ 432.104, an agency may propose a reduction-in-grade or removal action if the employee’s performance during or following the opportunity to demonstrate acceptable performance is unacceptable in 1 or more of the critical elements for which the employee was afforded an opportunity to demonstrate acceptable performance.
One thing to notice at the outset is the absence of the familiar term “Performance Improvement Plan” or PIP. Instead (and worthy of notice), one sees the phrase “opportunity to demonstrate acceptable performance”.
This article explores a dozen thoughts concerning performance-based actions and PIPs. While I wish for a Federal workforce in which every employee occupies a job they are capable of performing, the thoughts that follow concern those unfortunate cases where a Fed is occupying the wrong job.
1. Can’ts and Won’ts
PIPs should only be given to people who can’t do what they are paid to do. That doesn’t mean that unacceptable performers are abject disasters; just that they are failing in at least one critical element or objective in which they are evaluated. Performance cases shouldn’t be confused with disciplinary ones where behavior or violating rules (attendance, courtesy, safety, etc.) is the problem requiring attention.
Even issues of diligence should not be considered as performance cases. Employees are paid to work. That is the essence of employment – I’m paid to do stuff you want done. Wasting time, goofing off, or otherwise failing to perform work when expected to do so are cases that lend themselves better to disciplinary regulations. Performance issues relate to those who just don’t get it.
2. The simple solutions aren’t going to make a difference
Supervisors and managers who attend my classes often suggest training, mentoring, or reassignment to another position/supervisor as solutions for cases of unacceptable performance. If any such action will solve the problem, go for it. PIPs and performance-based actions are reserved for cases where the individual isn’t capable of earning all the money they are paid.
These cases are onerous for supervisors and perilous for employees. Managers who believe an employee is incompetent to perform their job should be interviewed carefully before a PIP memo is drafted. In most cases, the employee had been performing unacceptably for years. Easy fixes had already been tried… and failed. The time for action has arrived, and the performance improvement plan announces that moment.
3. It’s management’s fault
All of my performance cases involved perfectly decent people. Some may have been among the best in their field. Others were reassigned in a reorganization and never adapted to the new position. Then there are are those whose supervisor “retired in-place” and were never told their work was substandard. For years, their performance ratings have been, in essence, falsified.
Confronting employees who cannot perform at their pay grade may be the most uncomfortable chore a manager will ever experience. These employees range from inoffensive to kind to charismatic. Telling them that they will be put on a performance improvement plan can feel nothing less than awful. The entire burden in these cases falls on the first level supervisor who may be viewed as an oppressor for being the first person to tell this person the truth.
4. Prior ratings have nothing to do with it
Those of us who have experience with performance cases know that a history of shameful neglect too often precedes the PIP. Most employees who are labeled as unacceptable have been performance problems for years… but never honestly assessed. In fact, PIPs are commonly initiated by new supervisors who have inherited the incapable employee from a predecessor who essentially lied to them.
While embarrassing, past ratings have no bearing on this rating cycle, supervisor, and “performance plan”. At an appeal hearing, I once “stipulated for the record” that the employee who had appealed his removal due to unacceptable performance had been “misrated” for a decade. The judge ruled that prior ratings and supervisors were irrelevant.
5. Pre-PIPs and PAPs represent time and energy wasted
Many agencies have a level of performance equivalent to a “D” in school. This “marginal” or “minimal” rating accomplishes little and has been criticized in other FedSmith articles for a number of reasons (See Unmasking the Marginal Federal Employee and When Mediocre is Good Enough). Worse still is requiring a “Performance Assistance Plan” or “pre-PIP” before the actual performance improvement plan can be initiated.
In my experience, employees identified as marginal or minimal are, upon careful interview, found to be unacceptable or unsatisfactory. Supervisors often believe that the employee must be given a “D” before threatening an “F”. Nothing could be further from the case. If the employee fails a pre-PIP or PAP they are still demonstrating acceptable performance, as a “D” is not an “F”. All that scrutiny and paperwork has left the employee in place and getting paid every two weeks.
6. Getting ducks in a row
When a supervisor musters the courage to identify an unacceptable performer, others should be engaged before confronting the employee. First and foremost, the second-level supervisor needs to be onboard. This is a decent employee who faces removal. Sympathy may undermine the entire case. A pledge of support from the supervisor’s boss is an important first step.
If that backing is achieved, the next stop is a human resources office to ensure all of the technical requirements for a PIP are met. If HR is onboard, then a PIP memo needs to be drafted in collaboration with a specialist in their office. Most agencies want a staff attorney (who may be called upon to defend a removal action down the road) to bless the document before it is delivered to the unfortunate employee.
7. Consider a “soft landing” BEFORE the PIP begins
As mentioned earlier, the PIP and is focused on the person’s competence to do all of what they are paid to do, not their behavior. Because their failings are not willful, the odds of success by the end of the PIP are slim. While everyone should hope for the best, management should also prepare for the worst. If the employee does fail, the objective should be a “soft landing”.
Absent reassignment (see above), soft landings might be transfer, retirement, resignation, or voluntary change to a lower-graded job. Clearly, these options aren’t great news for the employee. Each, however, may be preferable to removal. Line management should be in consultation with human resources regarding a lower-graded job that might fit the employee’s skill set and consider whether offering that job is a viable option to demotion or removal. A lesser position may prove preferable to unemployment. I suggest offering that job at the conclusion of the PIP and, if rejected, taking the option of involuntary demotion off the table.
8. Have you ever heard of “Discontinued Service Retirement”?
As one who never stayed the course until retirement (I resigned after 13 years of service), I have no expertise in this area of human resources. I am, however, aware of the regulation allowing qualifying individuals to retire ahead of schedule. This category is to be used for terminations that are non-disciplinary. “Discontinued Service Retirement” normally applies to employees separated due to a reduction in force (RIF). Curiously, it applies to performance-based terminations as well. Among the many awkward aspects of performance-based actions, the employee must be fired to obtain this benefit.
9. The burden is on the employee
The expression “Performance Improvement Plan” may be misnomer. If supervision and management had a viable plan that might bring the unacceptable performer up to speed, they would have implemented it already. In fact, PIPs usually go to employees who have lagged behind their coworkers for years. The odds that they will significantly improve over the course of 1-3 months are slim.
Now consider this: When an employee is given a PIP, management has essentially put all of its chips on the table. They believe the individual can’t do all of the essential aspects of their job. The common time frame of 30-90 days represents an opportunity for the employee to disprove this belief. Thus, while the PIP in in process, the burden is on the employee, not the supervisor.
There is ample case law supporting the notion that 30 day PIPs are sufficient to reach such a conclusion. Back in the 1980s, opportunity periods ranged from 30-60 days. For numerous reasons, PIPs lasting 2-6 months are commonplace in government. An “opportunity to demonstrate acceptable performance” needn’t become an enervating march toward a forgone conclusion. If a mistake has been made and the employee is competent, s/he can demonstrate that in a month or two, and if there is any doubt, the PIP can be extended.
10. No valid grievances, appeals, or complaints
Initiating a performance improvement plan is a step that should prove free of the administrative litigation. The PIP is neither a decision nor a condition of employment. It’s an opportunity period that precedes a decision/conclusion. Additionally, the US Court of Appeals (3rd Circuit) found that a PIP is not an “adverse employment action”. Additionally, most negotiated grievance procedures exclude PIPs as preliminary warnings.
11. The agency doesn’t need mountains of evidence
When the law concerning performance-based actions was crafted, the congress expressly included language to ensure agency cases are easily proven. 5 USC §7701 provides that these cases should be supported by “substantial evidence”. According to 5 CFR 1201.56 substantial evidence is defined as, “The degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.”
Years ago, the Supreme Court wrote the following, “Substantial evidence is more than a mere scintilla. It means such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” As I was taught, this is the lowest burden of proof most lawyers have ever encountered. Unless fabricated, the evidence harvested over the course of 1-2 months will more than suffice.
12. The benefits will exceed the costs
The costs of having an incompetent employee in an agency’s workforce tend to be minimized. Consider the following.
- Workload imbalances – where competent workers are overburdened with work the unacceptable performer should rightfully be doing. This can lead to burnout and jeopardize deadlines/quality, as those employees cannot manage doing their own jobs plus assignments that their less able colleague can’t be trusted to successfully complete.
- Lower morale – from both equivalently graded coworkers and lesser paid workmates who know they are as good, or better, than the employee in question. They often like the person, but resent the inequity and inaction.
- Turnover – among the very employees your agency most wants to retain. As I wrote in an earlier article, competent hires may be leaving your agency after seeing that unsatisfactory performers are left in-place or “repackaged” for years on end.
- Credibility – of supervisors and managers who are obviously ignoring an issue faced by the workforce week in and week out. How can a leader profess allegiance to standards of conduct when her/his willingness to do what’s right and needed is called into question?
- Reputation – among those who directly interact with your employees or depend on your agency for analysis, advice, expertise, etc. When an unacceptable employee becomes visible to others within or outside your agency, word can spread quickly. Too often, incompetent employees become the face of government.
My heart goes out to those who may fail the PIP; however, when it’s time to face the issue, the considerable efforts required to initiate and complete a performance-based action will prove cost-effective. Years of savings will be accrued downstream. My hope is that the employee ends up in a job s/he can feel pride in accomplishing or happily retired. Meanwhile, leadership and coworkers can resume their focus on serving the United States.
