October 2019 Federal Employment Law Training Group Newsletter

Discipline for Poor Performance?

There’s been some noise over the past few weeks about OPM’s guidance on handling discipline and performance problems in the federal government. One of the things I have noticed is that a number of media outlets don’t understand the differences between performance and conduct. As FELTG readers know, these differences are significant because the section of the law that applies to misconduct is different than the one that applies to performance. In addition, the tools are different, the procedures are different, and the burdens of proof are different, depending on whether you are dealing with a performance situation or a misconduct situation.

Just this week, I have seen articles that refer to “punishments for poor performance,” stating agencies should “discipline a poor performer,” and “progressive discipline … essentially gives employees multiple chances to improve their performance.” Yikes. In the federal government, we don’t discipline for poor performance – we utilize a demonstration period (formerly called a PIP). Discipline is a tool for misconduct, not performance. I mean no disrespect to the hard-working reporters who cover dozens of topics, but do be careful not to believe everything you read. Or, if you prefer, “Trust, but verify.”

Speaking of reading, please enjoy the very first FELTG Newsletter in FY 2020, where we promise not to confuse poor performance with misconduct.

Take care,

Deborah J. Hopkins, FELTG President

Discipline Alternatives: Too Good to be True?

By Deborah Hopkins, October 16, 2019 What if… You could discipline an employee in a way that didn’t cause you more work? You could discipline an employee and they couldn’t file a grievance or complaint? The discipline you issued actually helped other people? Believe...

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Excessive Absence and the Third Cook Factor

By Barbara Haga, October 16, 2019 In several classes recently, I have had questions regarding the Cook factors and what makes one of these cases successful. Just to make sure we are all on the same sheet of music, here is a quick review of what the Board wrote in Cook...

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Supreme Court Hears Arguments on Gender Stereotyping Cases

By Dan Gephart, October 16, 2019 The Supreme Court decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) made it clear that Title VII not only protects employees from being treated differently based on their sex. It also protects employees from being treated...

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Civil Service Update: October 2019

By Dan Gephart, September 18, 2019 Welcome to FY 2020. Didn’t it feel like we spent most of the previous fiscal year waiting? Waiting for new Merit Systems Protection Board members to be confirmed. Waiting for some type of resolution on the portion of President...

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The Good News: Finally, an End to the Table of Penalties!?!

By Ann Boehm, October 16, 2019 Employee relations specialists, supervisors, and attorneys at agencies all around the country have one thing in common – they love, love, love their agency’s Table of Penalties.  And I just don’t get it. When I became Chief of Discipline...

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Tips From the Other Side: October 2019

By Meghan Droste, October 16, 2019 Like many other large organizations, the Equal Employment Opportunity Commission issues strategic plans every few years to highlight institutional goals and identify ways in which it hopes to achieve them.  During a recent webinar on...

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