How Late is Too Late to Clarify Vague Performance Standards?

By Deborah J. Hopkins, February 10, 2026

Last summer OPM issued a memorandum [PDF], Performance Management for Federal Employees (OPM Memo), as part of its goal to deliver a “high-performance, high-accountability culture in the Federal workforce.” We covered the guidance in detail in a training a few weeks later, and one of the ensuing discussions has focused on the requirement that:

[P]erformance plans should be written as clearly and specifically as possible to “provide a firm benchmark towards which employees must aim their performance” and “permit the accurate evaluation of job performance on the basis of objective criteria.” Performance elements and standards should be measurable, understandable, verifiable, and achievable [MUVA].

OPM Memo at 4.

This concept isn’t new; clarifying vague standards is something that multiple administrations have focused on in years past. Despite that, vague performance standards still exist, and they continue to present problems for supervisors when employees perform unacceptably.

While OPM is requiring supervisors to clean up their employees’ performance plans in advance of the appraisal period, what happens if a supervisor hasn’t done that, and is now facing a performance problem with an employee? Must the supervisor rewrite or clarify the standards and wait until the new appraisal year begins before taking action?

Nope.

Consider a recent MSPB decision, Khan v. DOJ, DC-0432-21-0205-I-4 (Jan. 29, 2026)(NP). Here’s what happened:

• In 2019 the appellant, a GS-14 IT Specialist, was given a performance plan with 5 rating levels.
• The plan contained six critical elements, with the “successful” level of performance (Level 3) defined for each element.
• On May 26, 2020, the agency informed the appellant that her performance was “unacceptable” (Level 1) in three critical elements.
• The agency put the appellant on a PIP that lasted 79 calendar days.
• During the PIP, the appellant’s supervisors met with her weekly to discuss her performance, and provided her with written notes from the meetings.
• At the conclusion of the PIP the agency determined the appellant’s performance remained unacceptable on Critical Element 1, and issued her a level 1 performance rating as a result.
• On November 6, the agency proposed removal for unacceptable performance and on December 30 affirmed the removal.
• The appellant filed an MSPB appeal, and the administrative judge (AJ) sided with the agency, finding it met the requirements of a performance-based removal under Chapter 43.

Id. at 2-4.

On Petition for Review the appellant alleged, among other things, that the agency’s removal action was improper because her performance standards were impermissibly vague, the agency failed to communicate “valid performance standards” before the initiation of the PIP, and that she was not performing unacceptably before the start of the PIP. Id. at 5.

On Vague Standards

The general rule is that performance standards are not valid if they do not set forth the minimum level of performance that an employee must achieve to avoid unacceptable performance. Towne v. Department of the Air Force, 120 M.S.P.R. 239, ¶ 21 (2013).

In Khan the Board held, because the appellant’s Level 2 performance standard was not clearly explained in the performance plan, the standard was indeed “impermissibly vague.” Khan at 8. But, the agency clarified its expectations in the “job elements” section of the PIP by informing the appellant of the specific tasks she would be required to complete during the PIP, and the agency’s clear guidance during the PIP also helped cure any lack of specificity in the performance plan. Id.

On Pre-PIP Unacceptable Performance

When an appellant challenges a performance-based removal or demotion, the agency is required to produce substantial evidence of pre-PIP unacceptable performance. Santos v. NASA, 990 F.3d 1381 (Fed. Cir. 2021).

In Khan, the Board was not convinced by the appellant’s argument that the agency did not have evidence of pre-PIP unacceptable performance: “to the extent that [the performance plan] was vague, the agency clarified its expectations of the appellant through day-to-day communication regarding her work,” including “regular instruction concerning her work assignments and deadlines throughout the appraisal period.” Khan at 10.

A line on the next page stands out to me: “Accordingly, we find that the agency communicated its expectations concerning ‘minimally satisfactory’ performance in [Critical Element] 1 with sufficient specificity before its initiation of the PIP.” Id. at 11.

Pre-Santos, clarification of a vague standard at the time of the PIP implementation, and during the PIP, was sufficient. Johnson v. Interior, 87 M.S.P.R. 359 (2000). Post-Santos, vague standards must be clarified at some point before the agency is permitted to PIP an employee.

What’s the Board’s rationale for this change? I think it’s this:

• If an agency waits until the PIP implementation to clarify vague standards,
• And the standards were not sufficiently clear pre-PIP,
• Then the action will not hold up under Santos, which
• Requires documentation (substantial evidence) of recent/pre-PIP unacceptable performance, and
• You can’t prove unacceptable performance on an impermissibly vague standard.

This is a significant change mentioned without fanfare in an NP case. If any readers have a differing or concurring interpretation, I welcome your thoughts. [email protected]

Related training

• Performance Forward: Navigating OPM’s Accountability Requirements (recorded July 21, 2025)
• UnCivil Servant: Holding Employees Accountable for Performance and Conduct, February 11-12
• MSPB Law Week, April 20-24
• Advanced MSPB Law: Navigating Complex Issues, July 14-16

The information presented here 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.