By William Wiley, March 14, 2018

Several weeks ago, we distributed an article explaining how an employee engaged in misconduct could be handled well, compared to a series of missteps that amounted to doing the wrong things. In response, we got an outpouring of requests (2) that we do the same bad-thing/good-thing comparisons for an employee who has not a misconduct problem, but rather is a poor performer. There are two different laws that come into play depending on the type of problem employee we have. For purposes of the comparison, we are relying on 5 USC Chapter 43 and 5 CFR Part 432 for the performance action.

So here’s our list of bad-choice/good-choice options. On the left, you’ll see a list of actions we have seen historically that supervisors think they have to take when faced with a poor performer. On the right, you’ll see our FELTG approach that cuts right to the chase and empowers the supervisor to respond much more efficiently when an employee is a non-performer:

Supervisor provides the employee a performance plan at the beginning of an appraisal year or when the employee enters a new position. Absolutely essential. We cannot use the unacceptable performance procedures to hold the employee accountable unless there is a current performance plan in place.
Training Not required. Employees are hired with the expectation that they can do their jobs. However, to be safe we do allow the employee around 30-45 days to get used to any new performance standards.
Counseling    Not required.
Written Warning        Not required and generally a bad idea because the employee can claim reprisal or discrimination.
Letter of Expectation Not required. Causes the process to be drawn out for no benefit.
Reprimand or Suspension No. These are tools for dealing with misconduct, not poor performance. They should never be used for poor performance under 5 USC Chapter 43.
Initiation of an Opportunity to Demonstrate Acceptable Performance (aka, a PIP) Absolutely correct. Once the employee has been on a plan for several weeks, and the supervisor determines (not proves) that performance is at the Unsatisfactory level on just one critical element, an opportunity period should be initiated.
The Opportunity Period is Set for 60-120 Days Never! These periods should be 30 days.
The employee files a traditional race/sex/age discrimination complaint, and the agency requires the supervisor to produce evidence that the initiation of the opportunity period was warranted. Wrong. EEOC has held for years that the implementation of an opportunity period is not an adverse employment action, and thereby it cannot be the basis of a discrete-act EEO complaint.
The supervisor leaves the employee alone during the opportunity period to give him an opportunity to perform. Wrong. The supervisor meets with the employee periodically during the 30-day period and gives the employee assistance by providing critical feedback.
The supervisor grants the employee’s annual leave request, thereby causing the period to be extended. Wrong. Any annual leave or LWOP request should be denied or canceled if previously approved. In comparison, sick leave must be granted if the employee is sick. The PIP period can be extended to make up for any sick leave used.
Because the employee presents evidence that he’s disabled and his disability caused the poor performance, the supervisor cancels the opportunity period. Wrong. Disability accommodation is relevant for the future, not the past. The correct approach is to pause the opportunity period, engage in a discussion with the employee to determine whether there’s an accommodation that will allow him to do his job, then provide the accommodation and re-start the demonstration period.
Because the employee’s medical documentation establishes that he cannot perform some essential function, the supervisor removes the function. Wrong. The supervisor does not need to remove the essential function. The supervisor now needs to terminate the employee for Medical Inability to Perform, if accommodation and reassignment are not possible.
If the employee performs successfully during the opportunity period, he’s off the hook. Wrong. The employee must maintain acceptable performance for the next 11 months after completion of the 30-day period. If the employee again becomes unacceptable, immediate removal is warranted without another opportunity period.
If the employee performs unsuccessfully, the supervisor gives the employee written notice that he has failed the demonstration period, and that a proposed removal will be issued soon. This is the stupidest thing I have ever heard, yet I know some practitioners who do this. If the demonstration period is failed, removal should be proposed within five days.
If the employee performs unsuccessfully, the supervisor proposes a removal or demotion. The much better strategy is to propose removal. If there is a demotion position available, the supervisor should offer it to the employee as a voluntary alternative to removal and get it in writing. That way, the demotion cannot be challenged on appeal.
Removal will be proposed only if there are boxes and boxes of documentation of non-performance during the opportunity period. Wrong. Removal can be proposed even if there is just a bit more than a speck of proof; a little more than a jot or a grain. This is called “substantial evidence” and it’s all that’s required to remove a poor performer.


In summary, trained practitioners know how to deal with poor performers:

  1. Once the employee has demonstrated unacceptable performance on a critical element, the supervisor initiates an opportunity period to allow the employee to demonstrate whether he can perform.
  2. During the 30-day demonstration period, the supervisor provides the employee specific information as to how he is performing relative to the failed critical element. The supervisor collects evidence of unacceptable performance that is occurring during the period.
  3. The HR advisor or attorney works with the supervisor throughout the demonstration period to make sure that all the necessary evidence is being collected, and that the supervisor is aware of what he will be issuing once the period is completed.
  4. If the demonstration period is failed, the supervisor issues a proposed removal based on evidence a bit more than a scintilla. If the demonstration period is completed successfully, the supervisor issues a warning to the employee that his removal will be proposed immediately if his performance again becomes unacceptable during the remainder of the year.

Yes, appeals, grievances, complaints, and ULPs happen, but that’s the price we pay for a protected civil service. If you know what you’re doing, you can keep them down to a minimum, and always win them. As we’ve been screaming at the tops of our little FELTG-voices for nearly 20 years, it’s not the system that is a problem as much as it is a lack of people who understand the system.

Come to our training. Learn the program. Be a Performance Management Superstar. We love this stuff. [email protected]

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