By Ann Boehm, January 11, 2021
I’m not quite sure why the 1980s Nike “Just Do It” slogan came to my mind as a title for an article about using a 30-day demonstration period (also known as a PIP, ODAP, NODAP, DOP, etc.) to handle a poor performer. Perhaps it’s because I long for a simpler time.
Or maybe I’m too obsessed with binge-watching Cobra Kai. Terrific show! Lots of ’80s nostalgia. (If I’m ever conducting training for your agency, ask me about the time I served breakfast to William Zabka/Johnny Lawrence.)
Or maybe thinking back to a 1980s slogan is a subliminal recognition that since at least 1989, the Merit Systems Protection Board (MSPB) has said that 30 days is legally sufficient time for unacceptable performers to have an opportunity to demonstrate that they can perform their job before being removed, demoted, or reassigned. Melnick v. Dep’t of Housing, Urban and Development, 42 MSPR 932 (1989), aff’d, 899 F.2d 1228 (Fed. Cir. 1990)
Or maybe It’s because back in 1986, during a federal personnel training session, I heard the attorney instructor say, “Performance is the easiest way to remove a federal employee, but no one is doing it.” That always stuck with me.
Performance is the easiest way to remove a federal employee. Why is that?
Performance cases are reviewed by the MSPB using the “substantial evidence” burden of proof. That’s “[t]he degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4(p) (emphasis added), 5 C.F.R. § 1201.56(b)(1)(i).
It is a lower burden of proof than the “preponderance of the evidence” that is required for misconduct cases— “[t]he degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q) (emphasis added), 5 C.F.R. § 1201.56(b)(1)(ii)
Congress intended for performance to be the easier way to remove Federal employees. Why else would the burden of proof be lower for performance than misconduct?
But many years later, agencies still resist handling poor performers through the performance removal process. And I firmly believe the reason they do is because they make the demonstration periods too daggum long.
Agencies I worked for — and agencies I trained for the past two plus years with FELTG — wrongly have believed a demonstration period should 60, 90, or heaven forbid, 120 days long. Sometimes the agency policies contradict this belief. Many agency policies state a demonstration period should be 30 days.
Why does this continue to occur?
Some supervisors, HR professionals, and attorneys think the law requires more. Sometimes they fear if they don’t give the employee at least 60 days, they will get sued (um, employees have lots of ways to sue agencies, and they will do so no matter how long the demonstration period runs). Some even believe it’s too hard to measure performance in 30 days.
Let me tell you what is really hard. Expecting a supervisor to manage a demonstration period for more than 30 days.
An employee comes to work every day to do something associated with her job’s critical elements. If the employee is unacceptable on a critical element, there are assignments she should complete during a 30-day period that allow her to show she can perform acceptably – or not.
The supervisor has to work hard during a demonstration period – providing assignments, reviewing them, assessing them. It is reasonable to expect a supervisor to spend 30 days in order to have the opportunity to remove a poor performer. But if we expect them to spend more than 30 days, it becomes too onerous. And that’s not what Congress intended.
If you still don’t believe me, keep in mind that the newly issued Office of Personnel Management regulations do not include a timeframe for the demonstration period. All that they require is a “reasonable opportunity” for the employee “to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee’s position.” And good old Melnick told us back in 1989 that a 30-day demonstration period satisfies that “reasonable opportunity.” The MSPB confirmed this more recently in Thompson v. Dep’t of the Army, 2015 MSPB 31, n.12 (2015).
So, in 2021, Just Do It. Thirty-day demonstration periods. Handle problem employees. It’s easy. And that’s good news! [email protected]
