By Deborah J. Hopkins, December 11, 2024
Quick facts:
- The end of the year is a good time to review performance standards for clarity.
- If performance standards are vague, an agency can clarify expectations either before or during the PIP.
- If the agency writes backward standards, the Board will overturn a performance-based removal based on those standards.
With a new year coming, now is an excellent time for supervisors to look at their employees’ performance standards and review whether they might benefit from clarification. As I always say in my performance classes: “Poorly written performance standards aren’t really a problem if the work is getting done – but they quickly become a problem if an employee’s performance is unacceptable.”
If the work is getting done, many supervisors don’t really concern themselves with how the standards are written until it comes time for annual performance appraisals. And although the regs say that at any time the employee’s performance becomes unacceptable, the agency should address the situation by implementing a PIP (5 CFR § 432.104), poorly written standards too often serve as a roadblock to accountability.
Sometimes, the supervisor decides to hold the employee accountable (hooray!) but unfortunately misses an important step in the process. Consider Zepeda v. NRC, 2024 MSPB 14 (Oct. 20, 2024). The appellant was a special agent for the Nuclear Regulatory Commission’s Office of Investigations, and her supervisor put her on a PIP for three of her critical elements:
- Planning and preparation for assigned investigations;
- Conduct of investigations/assists to staff; and
- Preparation of reports of investigation and assists to staff closure memoranda.
Id. at 2.
At the conclusion of the PIP, the agency removed her for failing all three elements. The MSPB AJ, who presided over the appeal, found the agency’s performance standards were invalid. The AJ reversed the removal, and the Board agreed. Here’s why:
- The agency had a 5-level rating system and did not define the “minimal” level of performance, which is considered acceptable performance under the law. Jackson-Francis v. OGE, 103 M.S.P.R. 183, ¶¶ 6-7 (2006). The appellant’s performance plan “only defined fully successful performance for each critical element; it did not define minimally successful performance that would have allowed the appellant to avoid removal…” Zepeda at 5.
- The agency did not clarify the employee’s performance standards during the PIP. As the Board noted, “[a]n agency may cure otherwise fatal defects in the development and communication of performance standards by communicating sufficient information regarding performance requirements at the beginning of, and even during, the PIP.” at 6, citing Henderson v. NASA, 116 M.S.P.R. 96 (2011). Had the agency clearly defined what was expected for level 2 performance at this point, the action may well have been sustained. However, this leads us to:
- The agency’s attempt to define level 2 performance contained invalid backwards standards. This is a too-common mistake where agencies, in an attempt to clarify expectations, describe the performance expectation as work that doesn’t get done rather than the level of work that’s required.
For example, on one of the appellant’s performance standards, on the subcomponent for the quantity of work completed, the agency informed her that minimally successful performance would be met if she completed “a less than expected quantity,” which according to the Board meant the appellant would be successful “by producing nothing at all.” Zepeda at 7. In other words, backward standards are impossible to fail because of the way they are written. Therefore, a removal for failing such a standard cannot withstand appeal.
OPM has a helpful guide to identifying backwards standards, and includes the following to assist:
To help you determine whether you are writing a backward retention standard, ask:
- Does the standard express the level of work the supervisor wants to see, or does it describe negative performance? (Example of backward standard: Requires assistance more than 50% of the time.)
- If the employee did nothing, would he/she meet the standard, as written? (Example of the backward standard: Completes fewer than four products per year.)
The problems … that backward retention standards cause rarely surface until it’s too late. To avoid problems, it is worth taking the time when first developing the retention standards to ensure they are not … backward.
There’s much more in the case we’ll consider in future articles. If this is an area that causes concern, consider bringing FELTG to your agency for a workshop-based approach to writing legally sufficient performance standards. hopkins@feltg.com
Related training:
- UnCivil Servant: Holding Employees Accountable for Performance and Conduct, February 12-13
- Drafting Legally Sufficient Discipline and Performance Documents (Agency Direct training)