HOW TO CHALLENGE VAGUE PERFORMANCE STANDARDS
Do your members work under performance standards that require tasks be completed “in a timely manner” or that the employee efforts “result in timely service?” If so, MSPB just issued a decision that will help you attack the standard as overly vague and therefore void.
In Kolavo v. SSA, MSPB CH-0432-10-0975-I-3 (4/17/14) the agency fired an employee for failing to meet those timeliness standards. The Board allows performance standards to be based on a “certain amount of subjective judgment on the part of the employee’s supervisor.” However, if the supervisor’s conclusion is based on objective numerical targets, national or local workload goals or other objective reports/benchmarks, the employee “is entitled to advance notice that it intends to do so as well as notice of the method the agency intends to use to make that judgment.”
The Board went on to note that supervisor determined that this employee’s backlog was excessive “by considering the number of cases on the list, the time they had been on the list, and ‘whether or not they met the goals.’” Yet, she never informed the employee “whether there was an acceptable backlog amount” or how the employee “could determine whether he was meeting the agency’s other goals.”
If you are representing an employee being fired under a similar set of facts, or who is dissatisfied with his appraisal score in a critical element performance standard, or even looking for a way to void a similar timeliness standard on behalf of everyone who works under it, check this case out. It appears to give union reps the ability to argue that if interpretation of the standard relies on the supervisor’s judgment that is guided by certain numerical benchmarks then the supervisor must provide the employee(s) information about the method she will use to reach her conclusions. Otherwise, the rating and perhaps the entire performance standard are void. Given this, a union should have a good argument even under the elusive “particularized need” test to demand that the agency provide it information on the method used to apply standards like this.
FEDSMILL addresses this subject often. Check out the two following posts, among others: