More than 30 years after enactment of the Civil Service Reform Act of 1978, federal managers and supervisors still complain that taking a performance-based action is too hard.
Those complaints are ironic considering how employer friendly the CSRA is on performance actions. When I tell managers the real statutory rules for taking a performance based action and the type of review such actions undergo by the Merit Systems Protection Board, they universally express shock, accompanied by dropped jaws, accompanied by exclamations that their HR offices never told them what I’m telling them.
Why is it that the federal HR community has taken what is supposed to be an employer friendly process and made it so onerous for the employer? It cannot be for fear of losing at the MSPB because MSPB routinely sustains performance-based adverse actions on the much lower burden of proof standard set out in the CSRA.
Some myths first: You have probably heard that:
- It’s legally hard to fire an employee for performance;
- Performance actions can only be taken on track with the regular annual appraisal schedule;
- Poor performers who have been carried for years cannot be fired for performance because of their prior acceptable performance record.
None of the above statements are true.
First, once an employee is issued standards and serves the minimum number of days required by your agency’s internal performance system (usually 60 or 90 days), the agency can declare an aspect of the employee’s performance unacceptable and place the employee on a performance improvement plan (PIP).
Second, only performance during the PIP period is legally relevant at MSPB. So if the employee fails the PIP, is terminated, and files an MPSB appeal, the MSPB will only consider whether the agency has proved that the employee’s performance during the PIP was unacceptable. A related myth is that the employee can disprove the unacceptable PIP rating at MSPB by bringing into evidence his/her ratings from prior years as proof of successful performance during the PIP. Not so. Almost always, prior performance is not admissible evidence of current performance.
Third, it is legally easy to win a performance case at MSPB. That’s because the agency’s burden of proving unacceptable performance during the PIP is by “substantial evidence,” as established by 5 USC 7701(c)(1)(A). Substantial evidence is a lower evidentiary burden than “preponderance of the evidence,” the burden of proof assigned to agencies for proof of a misconduct adverse action.
Substantial evidence means “the degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.” And it is because of this evidentiary burden, that MSPB judges do not care to hear from the employee’s past supervisors who rated the employee great. What matters is whether the current supervisor’s view of the record of PIP performance was reasonable. No other reasonable supervisor’s opinion matters.
Here’s the kicker. When I hear managers and supervisors complain that the performance process is too difficult to administer and too tricky in outcomes, I tell them about the statutory legal ease for taking an action. Through discussion what becomes apparent is the additional burdens imposed on the agency’s internal performance process by the collective bargaining agreement, or in some agencies with more than one union, agreements.
I am always amazed that an agency would agree to set the bar higher and harder for its managers to take performance actions based on unacceptable performance when the law sets such a low bar, the way Congress intended. Why would an agency want to impose on its managers and supervisors more work to deal with poor performers? And of course this feeds into the nasty stereotype that some in Congress and in the media have decried about federal workers these past few years — that the federal government is a mediocre workforce which can’t get rid of poor performers. My advice is that agencies better get back to the basics of the CSRA soon, before Congress decides to fix the performance management system by eliminating it, and making federal workers an at-will workforce.
