One of the great gifts of the Civil Service Reform Act of 1978 was the ability for agencies to remove poor performers using what have come to be called the “432” procedures. Misconduct removals (non-performance terminations) rely on the “752” procedures that have been around since the cooling of the Earth. The 432 procedures were brand new back in 1978 and have several advantages for agencies over the old 752 procedures:
- A lower burden of proof to support the removal (substantial evidence rather than the preponderance required for 752 removals).
- No mitigation of the penalty (under 752, agencies have to a Douglas Factor analysis to defend their removals) because the agency does not have to prove that the removal promotes the efficiency of the service.
- All that really matters is what the employee does during the performance improvement period (the PIP or the Opportunity Period). Pre- and Post-PIP performance does not weigh into the calculus of a correct outcome.
Most federal agencies are covered by the 432 procedures. However, by statute a few are not, the U.S. Postal Service being the largest agency that is not covered. Therefore, the non-covered agencies have to use 752 procedures for everything: performance and conduct.
It is our experience here at FELTG that at least a couple of agencies who are not covered by 5 USC Chapter 43 (the 432 procedures) still like the idea of using a PIP when confronted with a poor performer. The question then becomes, what are the pros and cons of using a PIP in a world controlled by the 752 procedures.
First, the traps to avoid. Even though a Chapter 43-excluded agency might choose to develop a PIP approach to unacceptable performance problems, it does not thereby give itself the big 432 procedural advantages of a lower burden of proof and no need to prove the efficiency of the service using the Douglas Factors to defend the penalty. As a practical matter, although there’s no case law squarely on point, it would be perfectly reasonable for an arbitrator to expect to see a Douglas Factor analysis in a case in which the agency fires the employee for failing a 752-PIP, perhaps even insisting that an appropriate alternative to removal might be a suspension. A penalty ruling like that would be antithetical in a 432 performance removal, but not necessarily irrelevant in a 752-PIP removal.
However, even without these two big advantages, a 752-PIP approach to poor performance still has a significant advantage when compared to regular misconduct 752 removals. In a classic case of misconduct, the agency has to do an investigation into an act of rule-breaking conduct that has occurred in the past. It has to collect hard evidence to support a lot of facts that would be critical to proving the elements of whatever charge it comes up with. For example, did the employee walk out with an agency laptop in his backpack on January 15? Was the employee on notice that the start of his shift was 8:00 AM? Has the supervisor failed to enforce the rule in the past, thereby excusing the employee from obeying the rule today? These are all factual determinations that must be made, sometimes based on scant evidence or blurry security camera images.
Now, compare that with a PIP approach to poor performance. In a PIP situation, the supervisor is telling the employee that what is important is what happens in the future (during the PIP), not what happened in the past. Therefore, there’s no need to collect evidence relative to past performance because during the PIP, the supervisor will be collecting evidence of unacceptable performance as the PIP goes forward into the future. When we consult with supervisor clients during the PIP process here at FELTG, we review the supervisor’s efforts on a weekly basis and give immediate feedback as to the quality of the necessary PIP counseling as well as the adequacy of the evidence of poor performance that is being developed. That way, the supervisor can tweak her efforts during the PIP while evidence is being collected, thereby providing the employee better feedback and simultaneously building a more defensible action, should she decide at the end of the PIP that removal is warranted.
The PIP approach to performance-based removals under 752 lacks some of the great advantages of a classic 432 performance removal, but still gives us good reason to use it. Just be sure that you don’t make the mistake of thinking that if it talks like a PIP and walks like a PIP, you can use the lower burden and no-Douglas approach of a 432 removal. Wiley@FELTG.com.