WHEN CAN EMPLOYEE “LEADS” EVALUATE CO-WORKERS?

Answer:  They can’t or never are the only acceptable answers. But while the answer is easy, trying to convince managers not to ask Leads to draft performance appraisals is a lot harder. Delegating the task saves first line managers hours of work because first line manager need not personally track each employee’s performance closely throughout the year. But, it also puts the Lead in a bad, if not illegal, position with co-workers, not to mention they never get paid to draft evaluations.   So, here are some arguments to make if you face this problem and thoughts on what to do, especially for union-represented employees.

The clearest reason why Leads cannot evaluate, appraise or otherwise judge fellow non-supervisory employees can be found in the General Schedule Leader Grade Evaluations Guide.  It lists 14 tasks Leads are expected to perform. “Report to supervisors on performance,” is one of them and nowhere on the list is there an expectation that they will evaluate, appraise, or anything like that. Elsewhere the Guide compares what a Lead does to what a supervisor does with the following words:

  • Lead: Provide information to the supervisor on performance of the team and individuals
  • Supervisor: Assign performance ratings, approve awards and take performance-based corrective actions

Here is an example of the distinction between reporting and evaluating.  Assume a Social Security Lead Contact Representative monitors a co-worker’s calls and overhears her telling a caller that anyone 29 years of age or older can retire immediately on full SSI benefits.  The Lead’s job is to correct the employee and even report such the error to the manager, but it is not the Lead’s job to decide whether that is Unacceptable, Acceptable or Outstanding performance. Leads REPORT, supervisors APPRAISE, EVALUATE and JUDGE.

If the agency wants a Lead to evaluate employees, then it should upgrade the job to a supervisory level.  The Guide specifically excludes from the concept of a Lead positions assigned the task of evaluating others, “1- Employees who are accountable as supervisors for planning, scheduling, and directing work operations, administering supervisory personnel functions, evaluating work performance, and taking necessary action to assure that the work of subordinate employees meets standards of quantity and quality.”

There are strong practical reasons for the Guide’s distinction. Evaluators are supposed to be trained on how to appraise employee performance, but Leads are almost never given that supervisory training.  Beyond that, formal appraisals should take into account more than the simple observation of an employee’s behavior.  An employee’s mistake, such as the SSA employee’s mistake in the example above, could be excusable in light of the lack of adequate training, a medical or personal condition the employee is dealing with, or even some prior instruction the employee was given to deal with that specific caller.  Only supervisors will have access to all that information, and only a supervisor will know whether the employee’s mistake is something he/she has been warned about before or a “first-time” event.  Lastly, if a bargaining unit employees grieves an appraisal prepared by a Lead, that could result in two unit employees testifying against one another.  Any testimony from the first line supervisor would border on useless hearsay, which is a terrible situation for an agency.

In addition to the practical reasons why Leads should not evaluate, there are legal ones as well. Leads will often be competing against one or more of the employees they lead when first line management jobs are vacant.  That is a conflict of interest just waiting to ripen into a full prohibited personnel practice.  If it does, the Lead would be liable for discipline.

If a supervisor shared the employees’ prior performance appraisals with the Lead to help him draft a new round of appraisals, it could violate the Privacy Act, making the agency liable for money damages.  And if the supervisor shares employee medical information with a Lead for the same reason it could end in an expensive violation of the disability discrimination laws.

Finally, transferring the task for drafting appraisals to a Lead from a supervisor could be an unfair labor practice if the agency fails to notify the union in advance, and that could void any appraisal the lead prepared.

Despite all the above, some managers still try to manufacture creative ways to get around logic and the law.  One of the craftier ways is that they tell the Lead to draft the appraisal, while retaining the authority to final and finalize it.  A union could respond by filing a ULP or ULP grievance, asking for all the evaluations prepared by the Lead to examine for evidence of discrimination, conflict of interest or other infraction, and demand that those evaluations either be destroyed or redone.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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