It’s time again to reach into the FELTG mailbag. A customer sent us this question:
Dear Ask FELTG: If my agency requires a 90-day PIP, is the employee entitled to the entire 90 days before the agency can take an action?
Thanks for the question.
In our performance classes (like the upcoming UnCivil Servant: Holding Employees Accountable for Performance and Conduct, June 11-12), we stress the importance of a brief performance demonstration period (DP, what many agencies call a PIP), but if you are stuck with a longer DP because of policy or collective bargaining agreement, then, well, you’re stuck with a longer DP. But the good news is, you don’t necessarily have to give the employee the full 90 days if it becomes apparent before 90 days the employee’s performance is still unacceptable and the employee cannot recover:
For example, if the DP is written that on a particular critical element, the employee may not make more than three significant errors in the 90-day period, and the employee makes five errors in the first 30 days, the agency may end the DP early because the employee has already failed and cannot meet the requirement.
Take a look at Luscri v. Army, 39 MSPR 482 (1989), a case where the appellant’s initial lengthy PIP was shortened by 21 days. The appellant argued he was not given a reasonable opportunity to demonstrate acceptable performance because the agency cut the employee’s PIP short. The Board held that the appellant was not entitled to the entire PIP period because precedent has long found 30 days to be a reasonable period of time for a PIP.
A recent NP MSPB case also looked at an appellant not being afforded the full 90 days, with a twist: He was not in the workplace for a significant portion of the 90 days because of “leave, training, technical, or other issues (316.75 hours of 568 total hours).” Young v. VA, PH-0432-17-0342-I-2, p. 5 (May 15, 2024)(NP). Even still, the Board held that the 251.25 hours the appellant was at work still provided him with a reasonable opportunity to demonstrate acceptable performance. The Board reasoned:
Moreover, the Board has found that a 30-day PIP may be sufficient to provide an appellant with a reasonable opportunity to improve under 5 U.S.C. chapter 43 (citation omitted). Even if the appellant only worked 40 percent of the 90-day PIP and 20 percent of the extension period, he had more than a 30-day timeframe to demonstrate acceptable performance.
. Id.
It’s sure nice to know that the Board is following precedent on this all-important aspect of performance accountability.
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The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.
