By William Wiley, December 13, 2017
Recently, the Acting Deputy Secretary of Health and Human Services took the accountability-bull by the PIP-horns. Instead of leaving the length of a PIP to the vagaries of the various supervisors and management advisors within the 80,000-employee agency, effective immediately, PIPs at HHS generally are not to exceed 30 days in length, barring some CBA that states otherwise. In addition, the immediate supervisor administering the PIP is required to decide whether the employee performed acceptably during the PIP and initiate steps to implement that decision within seven days of the end of the PIP, if not sooner.
First, our congratulations to the leadership at HHS. Bravo! A poor understanding of the PIP process and a mistaken belief that somehow a longer PIP is either required by law or better for America has been a long-lasting problem in our civil service. It’s absolutely delightful to see an agency taking seriously our government-wide challenges with accountability and implementing a drop-dead easy first step to make things better for agency supervisors who are trying to get done the government’s work.
In response to this recent change, we got a question from a Concerned Observer (CO) who wondered if this change comported with due process. Separately, our CO wondered if the notice period in a removal was long enough to satisfy due process if it was only seven days. Apparently, in the CO’s agency, employees who were having their removals proposed were routinely being given 14 days to respond. Our response follows and may be helpful to those of you considering whether to follow the shorter-PIP lead of HHS:
As for the length of the response period in a removal and due process, the Constitutional due process requirement says that the citizen has to be given an opportunity to defend himself from the government before the government can take his property. Congress defined the length of an appropriate due process response period in 1978 when it passed the Civil Service Reform Act. Therein, it defined the reasonable response period to be seven calendar days, 5 USC 7513(b)(2). In the 40 years since then, no court nor the MSPB has ever held that seven days is a violation of due process and thereby an inadequate period of time to respond. Not. Ever.
In fact, there are situations in which the law allows for an even shorter response period. In a statute that applies only to law enforcement officers, if a LEO is found guilty of a felony, there is a LEO-specific statute that says fewer than seven days still satisfies the minimum due process requirements. Bottom line: There is no legal reason to give more than seven days’ notice in a proposed removal action.
As for whether a PIP longer than 30 days will increase the chance of success before the Board, in 40 years, a longer PIP has never improved the chances of agency success. Not. Ever. Of all the federal employees fired in the past four decades for poor performance, none has ever been put back to work on appeal to MSPB because the PIP was not longer than 30 days. In fact, in the history of our great country, going back to the Articles of Confederation, only one performance removal was reversed by the Board because the PIP was too short. That was when the Department of Agriculture used a three-day PIP back in the ’80s. Bottom line: I was chief counsel at MSPB for nine years. I’ve reviewed thousands of terminations on behalf of the Board’s Chairman. I know this stuff cold. A longer PIP does not help you.
In fact, a longer PIP makes you look foolish and like a waster of taxpayer dollars. Here’s why:
- We hire employees who claim they can do a job. Unless specified as selected for a trainee position, new hires have to meet job qualification requirements when first employed.
- Newly hired employees have to be given a couple of months to get used to a new position. MSPB calls this a warm-up period. After that, they should be fully functioning, successfully performing employees.
- Prior to PIPing an employee, the supervisor has to have observed enough job deficiencies to reach the conclusion that the employee is performing unsuccessfully; that even though the employee said he could do the job when hired and has been given 60 days or so to get used to the job, he can’t do it. In the private sector, most employers would fire the employee at this point.
- However, by law prior to firing a failing career federal employee, we have to give him an opportunity to demonstrate that he actually can perform, even though it appears he cannot. 5 USC 4320(b)(6). The law doesn’t say to “improve” to acceptable performance. This is not a “developmental” period. The law says to “demonstrate” acceptable performance. So, if we have an employee who said he could do the job when hired, and he has demonstrated to his supervisor he cannot do his job and does not deserve to be paid every two weeks because of his non-productivity, how much more Federal money should we spend to allow the guy to demonstrate whether he can do his job? We look foolish if we give more than 30 days. If the government were being run like a business, the individual would be given much less than that.
As for the seven-day decision-making period in the HHS Secretary’s new instruction, ask yourself this: If a supervisor has already decided an employee is a poor performer (a prerequisite to initiating a PIP), and has observed the employee closely and counseled the employee during the PIP (a requirement for a valid PIP), then how much more time does the supervisor need to decide whether the employee should be removed, given that each day the supervisor waits beyond the PIP to initiate a decision is a waste of taxpayer dollars?
In our practice here at FELTG, when we work with a supervisor to PIP an employee, the supervisor makes the decision on day 31 of the initiation of the PIP. Seven days, frankly, is generous. Put another way, a supervisor who cannot decide within a week of the end of the PIP whether we should keep paying an individual who has already demonstrated he does not deserve to be paid probably should be PIPed himself. Holding employees accountable is a fundamental obligation of every federal supervisor.
A large part of the length-of-PIP issue was caused by OPM. Way back in the early ’80s, OPM in its regulations coined the term “performance improvement period.” That’s of course, where we got the acronym “PIP” and those initials have come to be widely used throughout government since then. Unfortunately, the law that was passed in 1978 never called for an “improvement” period. Instead, it specifically called for a “demonstration” period. 5 USC 4302(b)(6). Those are two fundamentally different concepts. Want me to demonstrate whether I can play the piano? In 20 seconds you will know I cannot. Want me to improve my piano playing? That, my musical friend, will take weeks and months. (Dr. John is my New Orleans idol, musically and sartorially: https://www.youtube.com/watch?v=YcvudjjnFdo )
Sometime in the ’90s, OPM saw the error of its ways. Its regulations no longer call for an improvement period. Instead, they mimic the law and call for a “demonstration opportunity,” 5 CFR 432.104. Unfortunately, “DO” has not caught on and we continue to use the misnomer “PIP”, thereby mischaracterizing the purpose of the period and causing confusion as to a proper length.
As we have said many times, because of the frustration that Congress has had with our seeming inability to hold federal employees accountable, we are on the verge of losing our statutory civil service protections. In addition, a number of agencies are looking at serious reductions in the number of individuals they employ. Can you spell RIF? If your agency is routinely using PIPs of more than 30 days, then you are contributing to the problem. You are failing to efficiently hold employees accountable for non-performance, and putting yourself in a position in a RIF to release highly-productive junior employees because you have a crowd on more senior non-performers who will be retained in a reduction in force.
Keep PIPs, response periods, and decision-initiating periods short and America will be the better for it. Wiley@FELTG.com.