By William Wiley, April 25, 2017

Any of you readers who have been to any of our training sessions probably fell off of your bar stool when you read the title to this article. That’s because here at FELTG, we have sung the praises of Chapter 43 removals ever since we started presenting training sessions two decades ago. They are easy to do if you know what you’re doing and darned near bullet proof on appeal given the low standard of proof necessary to establish that removal is warranted.

Well, we are not abandoning that theme. We still believe that removals using the procedures found at 5 CFR 432 are preferable to starting a 5 CFR 752 misconduct action. What we are writing about today is the concept of a PIP. Perhaps it’s time for a change.

As we always do in our training, we begin with the law. Here’s what the statute has said since 1978 about firing poor performers from the civil service:

Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for … removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance. 5 USC 4302(b).

A PIP as it is used in most every federal agency is an action that notifies the employee of prior unacceptable performance, then establishes a period into the future during which the employee has to perform acceptably or be fired. Observe that the law says nothing specific about a “performance improvement plan.” If you think about it, an agency could give an employee the statutory “opportunity to demonstrate acceptable performance” simply by giving the employee performance standards, an adequate amount of time subsequently to demonstrate whether she can do the job, then remove her if she failed to perform acceptably. The law does not say you can fire a poor performer “only after notice and a subsequent opportunity to demonstrate acceptable performance.” One could argue, if one were into statutory construction, that had Congress intended that there be notice, Congress would have called for notice in the law.

Unfortunately, that’s not how OPM interpreted the law back in the day. Given its statutory authority to issue implementing regulations, OPM came up with the requirement for notice to proceed an “improvement period” prior to an agency being allowed to fire the poor performer. That’s where we got the acronym “PIP.” The first set of regulations that OPM issued to interpret this part of the Civil Service Reform Act called for a formal “performance improvement period” to proceed any removal for failure to perform acceptably. Subsequently, OPM spruced up its regs a bit and changed (without explanation) the name of this period into a “performance improvement plan” thereby retaining the acronym PIP. Today, OPM’s regulations use no term that fits the acronym PIP, and instead revert to the original statutory language that refers to “a reasonable opportunity to demonstrate acceptable performance.” 5 CFR 432.104. Although the regulatory language now tracks the law, the concept of notice – arguably not mandated by the law – remains in effect.

Even with all these regulatory name changes, most supervisors we work with here at FELTG still use the old acronym “PIP.” It’s short, sounds nice, and is reminiscent of the backup singers for Gladys Knight. 😉 In fact, in our FELTG seminars, we sometimes exhort supervisors who have a non-performing employee to “PIP ‘em early, PIP ‘em often” just like they vote in Chicago. Well, maybe it’s time for a change.

The acronym PIP, implies an “improvement” opportunity. However, the law calls for a “demonstration” opportunity. Think how these implications are importantly different. If you were to say to me, “Demonstrate whether you can play the piano,” I would sit at a keyboard, move my fingers, and demonstrate very quickly that I cannot play anything at all. However, if you were to say to me, “Improve your ability to play the piano,” I would sit at a keyboard, do some initial finger moving, and then do more finger moving in an attempt to improve my playing ability. In other words, the fact that initially I cannot play the piano is irrelevant to whether I can improve my playing with time.

We don’t get to make the laws here at FELTG, but we do see it as our responsibility to try to understand the law so we can help those of you who attend our seminars do your jobs better and more efficiently. This statute does not mandate that an agency provide prior notice nor does it require an improvement period. It calls for an “opportunity to demonstrate” acceptable performance. We think that the terms in use today – “PIP” and even “opportunity period” – attach the wrong focus to the obligations that come into play when the civil service has a poor performer. The law seems clear to us that the requirement is on the employee to demonstrate acceptable performance with the agency providing assistance.

If it were up to us, we would wave our magic regulatory wand and decree that if indeed we are going to require notice and a subsequent evaluation period, we should drop the acronym “PIP” and instead used the term “Demonstration Period,” maybe “DP” for short. That approach places the emphasis where the Reform Act intended it to be; on the individual employee to show us whether he can perform the job he is being paid to perform.

Here at FELTG, we obviously are not too good at creating pronounceable acronyms (res ips). We have to use a little creative pronunciation to tell people orally who we are. So for the sake of being able to orally reference this new DP, I think it would be OK if we pronounced it similar to a PIP. When speaking we can call it a “DiP,” thereby allowing us to continue our admonishment to supervisors of poor performers, “DiP ‘em early; DiP ‘em often.”

And if you think the urban term “dipwad” seems appropriate, who are we to judge? Wiley@FELTG.com

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