HOW TO NEGOTIATE FOR PASS-FAIL EVALUATIONS

There is only one reason OPM demands that agencies use scored appraisals, e.g., scores ranging from one to five or from Outstanding to Unacceptable. Scores enable agencies to dilute the role of seniority and vets preference in calculating RIF retention lists. That’s the full extent of OPM’s interest. It has little to no interest in whether scores are used for promotion or awards, the other big money actions. All OPM requires in those actions is that the agencies give “due weight” to appraisal in promotion actions and that awards be limited to those rated Fully Successful or above. For all OPM cares, agencies can promote the lowest scoring applicant in the field and give her a whopper of an award so long as she is even hair above Minimally Successful. In fact, it has taken the position that it is a vital management right to select the least talented applicant and to award even those barely doing enough to avoid getting fired. Consequently, unions and agencies that want to use a pass-fail for everything other than RIF seem to have broad authority to do so. For example,…

nothing in the regs stops the parties from agreeing to limit the use of scored appraisals to just the RIF process. They would merely write into their contract or agency regulations that for purposes of promotion and awards all employees rated Fully Successful or above will be given a score of Pass for those two actions, and their official scored appraisals will not be factored into or even considered in making the promotion and award calculations. That would go a long, long way to protecting employees against the arbitrary, hair-splitting, fictionally objective evaluation systems that are all over government. It would also reduce the pressure on managers to prepare and give ratings as well as to deal with employee grievances, resentment and tensions.

But what about the agency that does not want to do that voluntarily? What can unions do to motivate them to reconsider? It turns out that they can do a lot by negotiating for procedural and appropriate arrangement protections that will require managers to do more work if they are going to use scored appraisals for promotions and awards. For example, unions could propose something like the following which would give the agency a choice between an uncomplicated appraisal process and a much more complicated and risky process:

Should the agency choose to use appraisal scores in promotion or award determinations other than a simple Pass-Fail classification, it will take the following eight actions to boost the accuracy of the appraisal process:

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However, should the agency limit consideration of appraisals in promotion and awards solely to whether the employee was rated Fully Successful or above, i.e., treat all those employees to be rated equally as Pass, it need only take the following two actions to boost the accuracy of the appraisal process:

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What could those eight obligations be? First, a demand that the agency track the awarding of scores by race, national origin, gender, age, disability status and numerous other variables for purposes of determining whether a statistically significant difference exists between civil rights act protected classes and seeking appropriate corrective action. (See Fedsmill’s How To Measure Management Unfairness post about the easy to use, free, on-line software that enables anyone to draw some legally valuable statistical conclusions.)

Second, a similar civil rights analysis could also be performed on the awards distribution and promotion systems to determine whether the promotion scores are adversely impacting the ability of a protected class of employees’ to get awards or promotions.

Third, similarly obligate the agency to collect data showing the scores by supervisor for the purposes of identifying those managers who are awarding scores outside the norm. For example, if the unit wide average appraisal score is 4.1 or slightly above “Exceeds Acceptable,” but an individual manager’s average score awarded is 3.1, that could be cause for further inquiry, score adjustments, and other corrective action. Clearly that manager is prejudicing her employees’ ability to compete for a promotion or award whether it is intentional or not.

Fourth, demand detailed definitions and examples of the different performance levels for each critical element. That should minimize the subjectivity and inconsistency of the process.

Fifth, require written detailed, narrative justifications of all scores other than Fully Successful or Pass. That would place a burden on managers to verify the accuracy of their appraisal.

Sixth, require managers to develop an extensive evidence file if the employee challenges a rating in a grievance, e.g., records on all the employee’s work throughout the year, copies of similarly situated employees’ appraisals—albe3it sanitized, etc.

Seventh, obligate the supervisors to evaluate not just a minimum portion of an employee’s work, but also a reasonably random sample to ensure that employees are not harmed or unfairly favored based on some isolated performance incidents.

Eighth, obligate the agency to live by the scores if they want to use them. For example, if an agency believes appraisal scores are so accurate, require it to limit the promotion Best Qualified list to the top three rated candidates and to tie awards directly to appraisal scores. Our guess is agencies are not willing to be so restricted because they know these ratings are far from being accurate and fair. In fact, we have seen that repeatedly.

We could go on, but you get the point. And so should the agency, i.e., there is an easy way and a not-so-easy way to run an appraisal system. Even if the union is unable to achieve these contract provisions, it can use many of these ideas to challenge appraisals once they are issued via information demands.

Aside from trying to “motivate” the agency to not use scored appraisal data in promotion and award decisions, unions could also try to negotiate a direct contract ban on doing so. The FLRA has found unions may not demand that agencies only have pass-fail appraisal systems, thereby barring the use of a scored system. However, FLRA has not yet ruled on whether a hybrid appraisal process would be possible. A hybrid would allow the agency to use a scored appraisal process, but limit the use of the scores only to RIF actions. That would still permit managers to direct and assign work, which are the two management rights that must be respected in appraisals. Don’t expect Kiko and Abbott to agree it is negotiable because that would upset their political sponsors who control their next appointment. But the circuit courts are not marionettes of right-wing, anti-union groups.

Moreover, irrespective of what FLRA has said, scored appraisals have nothing to do with what kind of work a supervisor can assign or the ability to direct or give employees performance orders. If a manager wants an employee to do a task (and/or to do it in a certain way) and the employee fails to comply, discipline is the best and most immediate way to handle that. For example, if a manager wants an employee to reduce the number of math errors in his reports, the manager simply orders the employee to double check each calculation. If errors persist, the employee has obviously failed to follow orders and can be disciplined with an immediate reprimand or even short suspension. That is a lot easier to do than to await the once-a-year appraisal process to lower an employee’s score, trigger a PIP, go through due process procedures, etc. Ironically, President Trumps recent Executive Orders confirm how much easier it is to use the discipline and adverse action system than the Unacceptable Performance process. Finally, management does not have the right to demand employees perform above the acceptable or fully successful performance standard. Management can hope employees do, they can dangle incentives for them to do so, they can maximize the work situation so that they can perform high above the minimum required, but they cannot fire the for failing to exceed the established acceptable level of performance.

The dirty little secret about appraisals is that many managers and managements would rather use pass-fail systems than scored ones. Unions need to place them in a position where they can do so.