Do Not Put Prior Poor Performance Examples in the PIP Initiation Letter

By William Wiley, January 2016

Questions out the wazoo. And this one goes to the heart of an issue that when I was a puppy, I went the other way. Now that I am older (and some would say wiser, but what do they know), I have found a better way. As for the question and then our answer:

Good morning FELTG Spiritual Leaders,

I have an agency that wants us to draft a very general PIP Notice. The agency does not want us to include examples of the employee’s deficiencies. While I understand there is nothing against this method in the CFR, I have concerns that the PIP will not be strong enough if the agency decides to take a performance based action and remove the employee (if the employee fails the PIP). Also, while I was researching on cyberFeds, I found contradicting guidance. Do you have any thoughts over which process is better? I really appreciate your time and any feedback you may have for me.

Dear Concerned Reader, Trying to do the Right Thing:

Very nice to hear from you. As for your question, we teach in our MSPB Law Week seminar NOT to include in the initiation letter the incidents of prior unacceptable performance that caused the PIP to be instituted. Here’s why:

Prior incidents aren’t required and provide no legal benefit. As you may have picked up from our newsletter articles over the years, we believe strongly that the best discipline and performance letters are the ones that say the least. That’s because the more you put in:

• The more chance you have to say something that is incorrect, and
• The more you give the employee to attack on appeal.

If you put in examples of prior poor performance, the employee isn’t going to believe them. Or, the employee is going to be defensive and feel that he’s being treated unfairly. This is a common human reaction that we teach about called the Dunning-Krueger Effect (or “optimism bias”). Therefore, the employee is going to want to challenge each of the incidents of “alleged” poor performance, either through the grievance procedure or EEO (although as you no doubt know, even though an employee usually cannot file an EEO complaint about a PIP initiation letter, some agency EEO offices accept the initial complaints anyway). This challenge is bad because:

• It causes the supervisor extra work, and most importantly,
• It distracts the poor employee so that she puts her energies into attacking the PIP when she needs to be putting her energies into working her tail off during the PIP. You actually disadvantage the employee by listing incidents of poor performance in the PIP initiation letter.MSPB has never ever held a 432 removal to be any stronger because prior poor performance was included in the PIP letter. Ever.

In fact, MSPB through its report-producing arm has listed the following as the components of a good PIP:

A good PIP typically will: State in clear detail what performance is expected from the employee and how it will be measured. Specify the assistance the agency will provide (on-the-job training, formal class training, mentoring by a more successful employee, etc.). Specify a person who is responsible for helping the employee through the performance improvement period and indicate how often this person will meet with the employee. (The person tasked with guiding the employee is often the supervisor, but it could be a team leader, co-worker, or other appropriate person.) Explain to the employee that if the employee has questions or does not understand something, the employee has the responsibility to notify a particular person (often the supervisor) and ask for help. State how long the PIP will remain in effect. State the possible consequences if the employee’s performance does not improve.

The Board does not include a listing of prior poor performance as a component of a good typical PIP. Neither do we here at old FELTG.

However, experience teaches that even though an employee usually cannot challenge the initiation of a PIP, he can sometimes challenge it by claiming the PIP is an incidence of reprisal (whistleblowing or prior-EEO-activity) or part of a continuing series of discriminatory events. Therefore, our advice to supervisors in our supervisory training is to contemporaneously draft a narrative of the incidents of unacceptable performance that precede and warrant the PIP, but not give it to the employee when the PIP is issued. Stick it in a file somewhere. Then, if a reprisal investigator comes knocking wanting to know why the PIP was initiated, the defense is in the file.

Hope this helps. If you need more, let us know. PIPs are fun and easy if you know what you’re doing, and now you do. Wiley@FELTG.com