By William Wiley, November 13, 2019

Actually, it’s not new; it’s the way Congress intended it be done starting in 1978. Check out the following situation. As a legal or HR advisor, consider what you would advise.

Sally Supervisor tells you her problem: Ed Employee just can’t do his job. He’s a GS-14, and he routinely submits “finalized” reports with typos, missing data, and improper calculations. Over the past couple of months, she’s repeatedly had to return reports to Ed with many mistakes marked in red and instructions that they be corrected. Ed’s resubmissions sometimes still contain errors. She has reminded him that his mistakes are related to the very first critical element in his performance plan, and has told him several times that if his work does not improve, she will fire him.

We have taught for many years here at FELTG that the best advice in this hypothetical is to draft a Demonstration Period (DP, aka PIP or ODAP) Initiation Memo for Sally to issue to Ed. That memo should check off what we believed to be important legal requirements:

  1. Identification of the Critical Element(s) in Ed’s performance plan related to developing accurate reports,
  2. Clarification as to what Sally considers to be the minimal level of performance for Ed to keep from being fired (e.g. “More than three errors during the DP is unacceptable performance and warrants removal”),
  3. Establishment of a period of no more than 30 days for Ed to be given a chance to demonstrate that he can perform acceptably,
  4. Assignments for Ed to accomplish during the DP related to the failed CE,
  5. Weekly meetings in which Sally gives Ed specific feedback as to his errors, followed up with emails confirming the matters discussed, and
  6. Explicit notification that if Ed makes more errors than allowed, Sally will take steps to remove him from his position.

Compared to the expansive, overly burdensome procedures we hear that a lot of advisors would give Sally (e.g., a 90-day PIP), we proudly felt that we had boiled the legal requirements for firing a poor performer down to the statutory minimum.

And, we were wrong. Check out this language from a recent publication by MSPB’s Office of Policy and Evaluation (OPE).  [FELTG Training Director Dan Gephart recently interviewed James Read, the Director of the Office of Policy and Evaluation.] In respect to OPM’s regulation defining how an agency can fire a poor performer, 5 CFR 432.104, OPE notes:

This regulation does not state that an agency must create a formal (or even informal) performance improvement plan. The Board has held that the communications required by OPM’s regulation may occur in a formal performance improvement plan, in counseling sessions, in written instructions, or in any manner calculated to apprise the employee of the requirements against which he is to be measured. [Citing Baker v. DLA 25 MSPR 614 (1985), aff’d 782 F.2d 1579 (Fed. Cir. !986)]

Remedying Unacceptable Employee Performance in the Federal Civil Service, June 18, 2019, p. 14.

Many practitioners and policymakers read into OPM’s regulations that a formal DP is required prior to removing a poor performer. That’s no doubt because the earlier permutations of OPM’s regulations from the ‘80s mandated that a supervisor initiate a “performance improvement period.” Although OPM did away with that formality as the case law developed, it never explicitly said by regulation that a structured DP was not required.

When VA’s law was changed a couple of years ago to make it easier to fire employees (Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017, 38 USC 323), it became clear that henceforth in the VA, a formal demonstration period was not a necessary prerequisite to a poor performance removal. Many practitioners outside of VA were somewhat jealous of the reduced procedures that had become available to VA managers when dealing with a poor performer.  Well, in consideration of MSPB’s clarification in the recent OPE report, it seems that we have stumbled on a secret like that of Dorothy’s ruby slippers: OPE serves as the good witch of the north and we Munchkins have “always had the power.”

As Glenda told Dorothy, I guess they didn’t tell us earlier because we wouldn’t have believed it; we have to learn it for ourselves.

So now we’ve learned it. And we have the power. FELTG Nation! Click your little ruby-red heels together and go spread the word. Turn up your speakers, prepare for your day to get demonstrably better, and click here: The wicked old PIP-witch “is not only merely dead, it’s really most sincerely dead.” [email protected]

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