By Deborah Hopkins, February 13, 2019

The longest shutdown in history is over, but there is a threat of yet another shutdown coming up in just a couple of days. At FELTG, we’ve gotten a LOT of questions about the shutdown, including a number on shutdown-related employee performance issues. So I think it makes sense to address some of the questions, and answers that have arisen over the last 7 weeks or so.

Do you need to alter performance requirements after a shutdown?

Yes, No, Maybe.

Yes. Of course, you can’t hold accountable any work that was not done during the shutdown; you essentially have to ignore the work that was not done and be reasonable in rating the employee’s performance after she gets back to work. For example, let’s say to be fully successful, one of the critical elements of the employee’s performance plan requires the employee to return all customer voicemails within 24 hours. Well, if the voicemails had been piling up for 35 days while the government was shut down, it’s completely unreasonable to require the employee to return every single call within 24 hours.

No. If the employee’s performance plan is broken down into daily requirements that haven’t been impacted by the shutdown, and the employee has not come back to a huge backlog, there may not be any need to alter the performance requirements. If an employee on the custodial staff is required to clean 10 offices each day, and those 10 offices have been empty for the last 35 days, you wouldn’t need to alter the performance requirement.

Maybe. Let’s use the example of custodial staff again, and those same 10 offices the employee is required to clean every day. If those offices had been used by essential personnel during the shutdown and after 35 days of not being cleaned they are atrocious and take 10 times as long to clean to the appropriate standard, then you may have to temporarily modify the performance requirements until things are back to normal.

The best idea is to communicate with your employees and set reasonable expectations for performance during this “dig out” period. When the backlog is cleared, let the employee know it’s back to business as usual. Oh, and follow up the discussion with an email as documentation of what you discussed.

What do you do if an employee’s Performance Improvement Plan was scheduled to start during the shutdown?

Oh, what a fun one. Remember, to put an employee on a PIP, you only need to be able to articulate a reason for doing so – that the employee fell below acceptable on at least one critical element of his performance plan. Therefore, you can put an employee on a PIP post-shutdown based on his performance leading up to December 21. If you had planned to launch a PIP January 2, but couldn’t because the employee was furloughed, then you can start it any time you want, as long as you can articulate the reason for the deficient performance.

The only time you might want to re-think it is if your poor performing employee came back post-shutdown and has been a rock star for the last couple of weeks, outperforming everybody.

What do you do if an employee’s Performance Improvement Plan was scheduled to end during the shutdown?

Unless there was only a day or two remaining in the PIP, you must extend the PIP by however many days were left in the PIP when the shutdown occurred, and you must ignore the period the government was shut down in the overall assessment of performance productivity. You will also need to look closely at the PIP requirements and make adjustments as necessary, to reflect the legal requirement that you allow the employee an opportunity to demonstrate acceptable performance.

For example, let’s say the employee had 15 days left on the PIP when the agency shut down. Now, you’re picking up with the remaining 15 days on the 30-day PIP and perhaps setting new deadlines and goals for the weekly assignments you’ve laid out. (If you haven’t done this, come to MSPB Law Week to learn why it’s so important). You can’t change or alter a performance standard, but you can clarify it. If the draft grant proposal was supposed to be completed by day 25 of the PIP, you’ll let the employee know he has 10 days to finish that proposal. Be specific, be clear, to let the employee know what exactly is expected.

If the PIP was all but over, and was supposed to end December 24 (Merry Christmas!), you probably have enough evidence to show whether or not the employee was successful. The shortest PIP on record, that the MSPB held was a reasonable amount of time to demonstrate performance, was 17 days. See Bare v. DHHS, 30 MSPR 684 (1986). 

Can you cancel an employee’s already approved leave once the shutdown ends due to performance workloads that now exist because of the shutdown?

Absolutely – you can always cancel previously-approved leave if you have a legitimate, business-based reason for doing so – as OPM puts it, for “project related deadlines or the workload of the agency.” And a 35-day backlog with all the related issues is most certainly related to the agency’s mission. So if you have to do it, go ahead and do it.

At FELTG we are keeping our fingers crossed that there is NOT another shutdown this weekend. But we’ll be here, either way. Hopkins@FELTG.com

 

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