By William Wiley, September 11, 2018

We hear it all the time from participants in our supervisory classes. “My HR specialist advised me not to use the Chapter 43 unacceptable performance procedures with a problem employee. He said the misconduct procedures would be much easier.” The White House executive order dealing with accountability went out of its way to stress that Chapter 75 procedures were always an option instead of Chapter 43 when dealing with a poor performer, see EO 13839, “Promoting Accountability & Streamlining Removal Procedures Consistent with Merit System Principles.” Finally, the recent MERIT Act voted out of a House committee last month would abolish 5 USC Chapter 43 altogether, thereby preventing agencies from using a demonstration period to give the employee a chance to show whether he can perform acceptably.

Here at FELTG, we just don’t see the problem. Sure, if the bad employee has already done something that warrants removal, 5 USC Chapter 75 adverse action procedures are preferable. Otherwise, 5 USC Chapter 43 procedures offer a list of advantages, and they are easy to use.

One aspect of the unacceptable performance procedures that causes a lot more problems than it should comes from the document that must be given to the employee to initiate the evaluation period. So many agencies overwork that particular memo, adding in a bunch of things completely unnecessary to having a legally viable document. Stuff like:

  • Instances of previous unacceptable performance that caused the supervisor to implement an evaluation period.
  • Referrals to EAP, EEO, medical providers (in case there’s a disability), OSC (in case the employee thinks he’s being reprised against for whistleblowing), etc.
  • Lengthy paragraphs as to how important it is to the mission of the agency that the employee perform acceptably, admonitions to work hard and prosper, and promises of tremendous help and guidance throughout the period.

Not only does all this extra language take more time, but it does nothing useful for the agency, and in some instances can even cause more trouble than necessary. Look. You want to initiate a demonstration (aka PIP) period? Easy peasy. Send the employee an email like this:

Bill-

It’s come to my attention that lately you have not been performing acceptably regarding Element 3 of your annual performance plan (attached). I have decided to give you 30 days to demonstrate whether you can raise your performance to an acceptable level. Starting today, here are some things I need you to do.

1 – Keep copies of every document (including emails) you create relative to the tasks that relate to Element 3.

2 – Keep a log of all phone calls and in-person discussions. Note the person involved, the content of the discussion, and whether any follow-up was required on your part.

3 – Meet with me every Friday for the next 30 days to discuss your progress for the week. We will meet in the main conference room at 2:00 PM, and you are to bring the above with you.

If you fail to accomplish three or more Element 3 assignments during the evaluation period, regrettably I am required to initiate steps to remove you from your position. Should you have any questions regarding my expectations of you, please direct them to me at any time.

Those of you with sophisticated computer skills might even be able to squeeze this into an instant message. Or, even a 280-character tweet. This is not hard. In fact, it is embarrassingly easy. If you believe that more is required, you do not understand the law of civil service performance accountability. Hey, that’s OK. Come to our classes. Learn the best way to do this business. Tell the folks on Capitol Hill and in the White House that we don’t need new laws, we just need good training. Hey, you can have us come out to train you. Or, if drafting the above email is just too much for you, we’ll even do it for you.

Don’t let poor performers get you down. FELTG is here to help. Wiley@FELTG.com

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