Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
- What is the difference between a PIP (Performance Improvement Plan) that is designed to help an employee succeed and a PIP that was merely put in place as a necessary step in the termination of an employee?
- If an employee was hired into a career ladder position and receives satisfactory annual performance evaluations but right before the 52 weeks are up, receives two quarterly performance appraisals with two “LTE’s” (Less that Expectation) in critical elements back to back and after the dates the evaluations were due, is management permitted to deny the promotion to the full performance grade of the career ladder position if the “LTE’s” do not contain sufficient information to warrant the “LTE’s”?
- If an employee is placed on a PIP and performs exceptionally well for the full 90 day period and is also notified by the Supervisor who placed the employee on the PIP that this employee passed with flying colors, is the Supervisor then permitted to issue a quarterly evaluation with the same two critical elements rated as LTE’s that the quarterly evaluation prior to the PIP contained and then subsequently use this as a basis to withhold the career ladder promotion?
- Is management permitted to ignore a grievance response deadline without asking for an extension to respond once it gets to the third level? What are the repercussions if management elects to not respond to a grievance submitted by the Bargaining Union on behalf of the employee?
The following responses correspond to the questions in the order presented above.
1. The difference between a PIP designed to help the employee succeed versus a PIP used as a step toward termination in the scenario provided above is the proper versus improper use of a PIP. An improperly used PIP (if that fact can be proved) may form the basis for an employee to challenge an adverse action decision at the MSPB.
2. Career ladder promotions are discretionary. A manager makes a decision on whether to promote an employee based on the employee’s demonstrated ability to perform at the next higher level.
3. Yes. See previous response.
4. The answer to this question is determined by the terms of the collective bargaining agreement. In many labor contracts, the union or a grievant is permitted to move to the next level of the grievance procedure or to arbitration if a deadline is missed. Check your collective bargaining agreement.
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I served 21 years as a Signals Intelligence (SIGINT) Analyst in the Army, retiring in 2010 as an E6. During the last 17 years of my service I earned 1 promotion (to E6) in 1999. Since I took the REDUX in 2003 and signed an Indef contract, is it possible that I was passed over for promotion for younger soldiers that the Army felt they needed to retain? I had zero marks against me, met all qualifications, had a College degree (BS, before I joined). As I got closer to retirement, I saw more soldiers with less experience, time in grade, time in service (some less than 8 years) getting promoted to E7 ahead of me. Got me to wondering if I was passed over for younger, less experienced soldiers.