Now is the Time: How Do Your Performance Standards Measure Up?

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By Deborah J. Hopkins, December 11, 2024

Quick facts:

  • The end of the year is a good time to review performance standards for clarity.
  • If performance standards are vague, an agency can clarify expectations either before or during the PIP.
  • If the agency writes backward standards, the Board will overturn a performance-based removal based on those standards.

With a new year coming, now is an excellent time for supervisors to look at their employees’ performance standards and review whether they might benefit from clarification. As I always say in my performance classes: “Poorly written performance standards aren’t really a problem if the work is getting done – but they quickly become a problem if an employee’s performance is unacceptable.”

If the work is getting done, many supervisors don’t really concern themselves with how the standards are written until it comes time for annual performance appraisals. And although the regs say that at any time the employee’s performance becomes unacceptable, the agency should address the situation by implementing a PIP (5 CFR § 432.104), poorly written standards too often serve as a roadblock to accountability.

Sometimes, the supervisor decides to hold the employee accountable (hooray!) but unfortunately misses an important step in the process. Consider Zepeda v. NRC, 2024 MSPB 14 (Oct. 20, 2024). The appellant was a special agent for the Nuclear Regulatory Commission’s Office of Investigations, and her supervisor put her on a PIP for three of her critical elements:

  • Planning and preparation for assigned investigations;
  • Conduct of investigations/assists to staff; and
  • Preparation of reports of investigation and assists to staff closure memoranda.

Id. at 2.

At the conclusion of the PIP, the agency removed her for failing all three elements. The MSPB AJ, who presided over the appeal, found the agency’s performance standards were invalid. The AJ reversed the removal, and the Board agreed. Here’s why:

  1. The agency had a 5-level rating system and did not define the “minimal” level of performance, which is considered acceptable performance under the law. Jackson-Francis v. OGE, 103 M.S.P.R. 183, ¶¶ 6-7 (2006). The appellant’s performance plan “only defined fully successful performance for each critical element; it did not define minimally successful performance that would have allowed the appellant to avoid removal…” Zepeda at 5.
  2. The agency did not clarify the employee’s performance standards during the PIP. As the Board noted, “[a]n agency may cure otherwise fatal defects in the development and communication of performance standards by communicating sufficient information regarding performance requirements at the beginning of, and even during, the PIP.” at 6, citing Henderson v. NASA, 116 M.S.P.R. 96 (2011). Had the agency clearly defined what was expected for level 2 performance at this point, the action may well have been sustained. However, this leads us to:
  3. The agency’s attempt to define level 2 performance contained invalid backwards standards. This is a too-common mistake where agencies, in an attempt to clarify expectations, describe the performance expectation as work that doesn’t get done rather than the level of work that’s required.

For example, on one of the appellant’s performance standards, on the subcomponent for the quantity of work completed, the agency informed her that minimally successful performance would be met if she completed “a less than expected quantity,” which according to the Board meant the appellant would be successful “by producing nothing at all.” Zepeda at 7. In other words, backward standards are impossible to fail because of the way they are written. Therefore, a removal for failing such a standard cannot withstand appeal.

OPM has a helpful guide to identifying backwards standards, and includes the following to assist:

To help you determine whether you are writing a backward retention standard, ask:

  • Does the standard express the level of work the supervisor wants to see, or does it describe negative performance? (Example of backward standard: Requires assistance more than 50% of the time.)
  • If the employee did nothing, would he/she meet the standard, as written? (Example of the backward standard: Completes fewer than four products per year.)

The problems … that backward retention standards cause rarely surface until it’s too late. To avoid problems, it is worth taking the time when first developing the retention standards to ensure they are not … backward.

There’s much more in the case we’ll consider in future articles. If this is an area that causes concern, consider bringing FELTG to your agency for a workshop-based approach to writing legally sufficient performance standards. [email protected]

Related training:

The Good News: A Letter to Santa 2024

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By Ann Modlin, December 11, 2024

Dear Santa:

With a new administration taking over in January, changes are sure to happen. Change can be scary, but I’m an eternal optimist. As a result, I’ve decided to go big this year. Here’s what I’d like for Christmas:

1. An end to numerical redundancy.

There is absolutely no need to ever write out a number and put the numeral in parentheses. This is what I’m talking about – ten (10); forty (40); seventy-five (75). Please make it stop, Santa. The easy rule is that numbers are written out one through ten (or nine, depending on your style guide), and numerals are used for 11 and up.

2. A budget from Congress.

I’m pretty sure I ask for this every year. Despite what some people think, the Federal government does a lot of good things. It takes money to do those good things. Federal employees should not have to worry about funding every single year! Congress needs to pass a budget now!

3. Help supervisors and advisors understand the burdens of proof are low for disciplinary and performance actions.

To discipline an employee, the agency must show that, more likely than not, the employee engaged in misconduct and that the penalty was reasonable — just 51%.

To remove a poor performer, the agency must show that any reasonable person might (not “would”) agree that the employee performed at an unacceptable level — just +/- 40%.

Easy as pie! (Speaking of pie, let’s add an apple pie to this list.)

4. Simplification of probationary and trial periods.

The probationary or trial period is a magical timeframe during which agencies may terminate Federal employees for unacceptable performance or misconduct without the due process rights that attach after that period. It should be simple to know who is a probationary employee and who is not, but sadly, it can be very complicated. Perhaps the new Congress and Administration could go to work on simplifying the language about probationary and trial periods in the U.S. Code. And heck, why not just make an across-the-board two-year probationary period for all competitive service and excepted service employees? This would take away some of the confusion. (I told you I’m going big this year).

5. Simplification of the Federal EEO process.

Santa, please don’t laugh at this one. The process is overly complicated, and I’m not sure it really helps remedy illegal discrimination. And EEOC Administrative Judges are completely overloaded. How about a pilot program with one agency trying the EEO system used by the private sector. Here’s how it works:

  • The employee has 180 days to file a complaint with the EEOC.
  • The EEOC notifies the agency of the complaint within ten days of receiving the complaint.
  • The EEOC offers voluntary mediation.
  • The EEOC has 180 days to investigate the claims, and the agency may submit a written response to the complaint.
  • If the EEOC does not complete its investigation within 180 days, the employee has a right to sue in Federal district court.
  • If the EEOC completes the investigation within 180 days, the EEOC can decide to sue on behalf of the employee or dismiss the complaint and give the employee a notice of right to file suit in Federal district court within 90 days.

This process works for private-sector employers. Why not give it a shot for the Federal government?? (Yep – I’m going big!)

6. Limit collective bargaining agreements to 150 pages.

I sense you may be laughing at this one too. No one wants to read hundreds of pages in a collective bargaining agreement.

7. A horse.

I have asked for a pony for many years, and no luck so far. In the spirit of going big, I would like a horse.

Merry Christmas and Happy New Year, Santa! [email protected]

Related training:

How Long Has This Unapproved Leave Been Goin’ On?

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By Dan Gephart, December 11, 2024

Quick facts:

  • When disciplining for AWOL, you have to prove not only the alleged facts but also the charge elements.
  • AWOL of more than five days typically justifies termination.
  • Older cases reveal that, depending on some factors, even fewer than five days could justify termination.

Over the Thanksgiving break, I found myself glued to HBO’s “Yacht Rock: A DOCKumentary.” For the uninitiated, yacht rock is a smooth and melodic, California-based blend of jazz, rhythm and blues, and soft rock that dominated radio airwaves between the mid-70s and mid-80s. Think “Ride Like the Wind” by Christopher Cross, “Black Friday” by Steely Dan, “What a Fool Believes” by the Doobie Brothers, or, basically, any other song with the voice of Michael McDonald.

The documentary was fun to watch, but then I started hearing these wispy songs wherever I went. I couldn’t escape them. This morning, I got in the car, turned on the radio, and was hit with the should-be-long-forgotten classic “How Long Has This Been Going On” by Ace. That yacht rock earworm has burrowed way deep into my temporal lobe.

It’s a fitting song, after all, since I’m writing today about Absence Without Leave, a disciplinary charge more affectionately known as AWOL. How many hours of AWOL justifies termination? In general, the answer is usually AWOL of greater than five days

Example 1: Young v. USPS, 14 MSPR 549 (MSPB 1983). A USPS mail handler was removed for fraudulent use of sick leave requests and AWOL. The agency charged the employee with 19 instances of AWOL, totaling 122 hours. In the initial decision, the AJ found only six instances, totaling 40.75 hours were supported by preponderant evidence. However, the AJ noted that all of the AWOL took place in a short period of time between June 4 and July 19 of the same year.

Although the mail handler’s performance had been fully satisfactory for 17 years, it was outweighed by his more recent record of unreliable attendance and its impact on the agency’s ability to accomplish its mission. The removal was upheld.

Could removal ever be deemed reasonable for AWOL of a smaller number?

Absolutely. Let’s try 17 AWOL hours, the number you’ll find in Banks v. DLA, 29 MSPR 436 (MSPB 1985). After a long stretch of unauthorized absence, an employee stated, through a union representative, that he was being treated for depression and work inhibition. The agency initially sought to remove the employee for AWOL but then made an alternative offer: We’ll put the proposed removal into abeyance and place you in a one-year probationary period. However, the employee refused to sign the paperwork.

Subsequently, the employee was AWOL for a combined 17 hours over a one-week period, and it was solely those absences that formed the basis of the agency’s removal action.

The MSPB ruled the removal was “reasonable under the circumstances of this case.”  The Board pointed out the absences came shortly after the employee was warned about the previous absences.

How about eight hours or one day?

In Moxley v. VA, 36 MSPR 345 (MSPB 1988), a nursing assistant was placed on a sick leave restriction, requiring her to obtain medical certification to verify any use of sick leave. She requested sick leave for eight hours for later that month. The agency gave her five days to submit a medical certification of the need for sick leave. She didn’t, and the agency charged her AWOL when she failed to show up on the requested day.

The MSPB found the agency’s penalty of removal was reasonable due to several factors,  including the fact she had previously been suspended twice for similar AWOL offenses. [A quick note here: FELTG considers suspension an irrational option with an AWOL charge. Better to consider a reprimand in lieu of suspension.]

To recap: AWOL is a leave status – not automatically a disciplinary action. But AWOL is also a disciplinary charge. In general, removal is appropriate for AWOL of longer than five days. However, it may be appropriate for shorter stretches, such as 17 or eight hours, although it’ll depend on other factors. Whatever the length of absence, however, be sure to consider the following elements when disciplining for AWOL:

  • The employee was absent without authorization.
  • If leave was requested, denial was reasonable. [email protected]

Related training:

Mold Allergy Turns into Harassment That Spoils OWCP Decision

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By Frank Ferreri, December 11, 2024

Quick facts:

  • A VA technologist was allegedly bullied after requesting accommodations for a mold allergy.
  • The technologist filed an occupational disease claim based on an emotional condition.
  • ECAB sent the case back to OWCP to consider new evidence from an arbitration decision that found the technologist was a qualified individual with a disability.

Sometimes, one thing leads to another. And, sometimes, one incident of legal significance opens the window to one or more other claims.

For example, there’s S.W. and Department of Veterans Affairs, No. 22-0565 (Oct. 17, 2024). It started with medical technologist’s complaints over mold in the workplace and ended up in a workers’ compensation claim, with a stop in disability-based bullying along the way.

What happened?

The technologist alleged he sustained an allergic reaction with respiratory, neurologic, and visual symptoms due to exposure to mold at his work location dating back to 1990. About two months later, the technologist filed another occupational disease claim alleging he sustained an emotional condition due to:

  1. Harassment by coworkers; and
  2. Disciplinary actions by supervisors.

Specifically, the technologist alleged: 1) two coworkers swore at him during training; 2) he was subjected to a pattern of discrimination; 3) his supervisor subjected him to disparate treatment and hostility on the basis of disability related to the mold allergy; and 4) he was denied reasonable accommodations.

OWCP denied the technologist’s emotional condition claim, finding the evidence of record was insufficient to establish a compensable employment factor. OWCP twice denied the technologist’s request for modification.

Later, OWCP received a union grievance arbitration, which found the technologist was a qualified individual with a disability based on his mold allergy. The decision also noted the agency discriminated against the technologist by not providing reasonable accommodations.

Despite this evidence, OWCP denied another request for reconsideration from the technologist, prompting him to take the claim before ECAB to require OWCP to reopen the case.

What did ECAB say?

Under 20 CFR 10.606(b)(3), to require OWCP to reopen a case for merit review, a claimant must provide evidence that:

  1. Shows OWCP erroneously applied or interpreted a specific point of law;
  2. Advances a relevant legal argument not previously considered by OWCP; or
  3. Constitutes relevant and pertinent new evidence not previously considered by OWCP.

ECAB determined OWCP improperly denied the technologist’s request for reconsideration of the merits of claim. ECAB faulted OWCP for not taking into consideration the contents of the union arbitration decision, which ECAB found was “new and relevant evidence regarding the underlying merit issue of whether [the technologist had] established a compensable employment factor.”

According to ECAB, the grievance arbitration decision, which found the technologist was a qualified individual with a disability based on his mold allergy, met the criteria for a merit review under 20 CFR 10.606(b)(3) — the decision constituted relevant and pertinent new evidence not previously considered.

Thus, ECAB directed OWCP to take another look at the case with the new evidence in hand and issue a new decision.

It isn’t every day that allergies, harassment, disabilities, and workers’ compensation pile up on an agency’s plate. However, it’s a reminder that addressing allegations of disability-based bullying early can make for a smoother and more peaceful work environment.

And remember: Reasonable accommodation requests don’t live in a vacuum. How an agency responds to an employee’s request could mean the difference between following multiple laws properly or ending up with compliance headaches. [email protected]

Related training:

Ask FELTG: Do I Have MSPB Appeal Rights If I’m Subjected to a RIF?

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December 11, 2024

Thank you for your question.

This query came in from a Title V employee. For those readers not familiar, a RIF is a Reduction in Force, which is a non-disciplinary action an agency takes when it eliminates a person’s job because of a legitimate reason (such as budget).

The answer to your question will depend on your employment category.

If you are a career employee who is not a member of a collective bargaining unit, then you have the right to appeal the RIF to the Merit Systems Protection Board if you believe the agency did not properly follow RIF procedures (for example, you did not receive 60 days advance notification of the RIF). 5 CFR 351.901.

If you are a bargaining unit employee under 5 U.S.C. 7121, and RIFs are not explicitly excluded by your collective bargaining agreement, then you must use the negotiated grievance procedure to challenge the RIF.

If you are a member of the Senior Executive Service, then 5 U.S.C. 3595(c) provides you with MSPB appeal rights over a RIF, under 5 U.S.C. 7701. This applies to career appointees, whether they are probationers or post-probationers.

OPM has a helpful guide about RIF procedures, which are usually incredibly complex, labor-intensive, and time-consuming. It remains to be seen whether RIFs will be happening in any type of grand scale, but if so the sheer amount of work means it’s not likely to happen quickly. [email protected]

Have a question? Ask FELTG.

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.