By Deborah J. Hopkins, March 15, 2022

As we eagerly await the first decisions from the newly seated MSPB quorum, we have also just passed the one-year anniversary of the Federal Circuit decision Santos v. NASA, that made us rethink everything we thought we knew about implementing the employee performance demonstration period, what we at FELTG call a DP, or as many of your agencies might call it, the PIP.

Over the past year, we’ve received numerous questions about PIPs. Below are a few questions with our FELTG answers.

Q: A supervisor is noticing a lot of performance issues with an employee. Our agency is in the performance documentation period right now and our performance cycle ends on 8/31. Is the performance rating in September a good time to rate as Unacceptable and announce the PIP, or should it be done before then? 

A: The supervisor should implement a PIP now, and not wait until annual rating time. There’s no requirement that the agency wait until a pre-determined rating time to implement a PIP; as soon as the supervisor can document substantial evidence of the unacceptable performance, then OPM regulations say it’s PIP time.

At any time during the performance appraisal cycle that an employee’s performance is determined to be unacceptable in one or more critical elements, the agency shall notify the employee of the critical element(s) for which performance is unacceptable.

5 CFR § 432.104

Waiting until the end of the appraisal period does nobody any favors, and a Level 1 rating is not required before an agency may implement a PIP. According to Santos, the agency need only document unacceptable performance that caused the supervisor to implement the PIP.

Q: How concrete do performance standards have to be, as well as expectations communicated on a PIP, in order to support any final decision to remove?

A: The agency has to have substantial evidence the employee performed unacceptably before, and during, the PIP, on the critical element in question. The expectations communicated depend on the employee’s job level and type; the higher the grade level, the less objective the standards and expectations need to be. See, e.g., Graham v. Air Force, 46 MSPR 227 (1990).

Q: While Santos sets out the requirement that agencies have substantial evidence of unacceptable performance before implementing a PIP, OPM’s proposed regulations disagree with that assessment. What happens next?

A: Well, a couple of things. First, OPM’s regs were proposed and not final, so we’ll wait to see what the final rule says. Second, the MSPB members will probably have a few things to say about Santos. Until we get their take, we won’t speculate – but we’ll keep you posted as soon as we know anything.

For more on employee performance challenges, join us for the virtual MSPB Law Week March 28-April 1, or check out the upcoming webinar The Roller Coaster Employee: Managing Up-and-Down Performance on May 10, or join us in person in Norfolk for Advanced Employee Relations August 2-4. [email protected]

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