WHY EMPLOYEES NEED WRITTEN OBJECTIVE PERFORMANCE STANDARDS

The Federal Circuit Court of Appeals just issued a decision stating once again that agencies need not provide employees with written performance standards, much less objective ones. We have probably all seen standards that state some task should be accomplished “timely” or “with a minimum errors” or even “in compliance with agency manuals, policies and practices.”  This lack of clarity is particularly problematic with the so-called “generic performance standards.” The bottom line is that when standards are neither written nor objective they are anything the supervisor says they are at the moment his lips are moving. In this case, the employee was performing a certain task Fully Successfully under one supervisor for years, but as soon as a new supervisor showed up he announced she was unacceptable. So, what is a union to do about this? 

First, unions should go to the term bargaining table to demand that standards be written as objectively as possible.  Inevitably agencies will object because that is hard to do.  In that case the union should at least insist that whenever an employee is placed on a PIP the standard be written as objectively as possible. A PIP is an adverse event that entitles the union to negotiate for an appropriate arrangement.

Second, the union should take the position that every time a supervisor creates a PIP containing more objectively stated standards than are in the on-going critical elements – performance standard documents, that is a negotiable change.  Consequently, the PIP cannot be implemented until negotiations have concluded.

Third, unions should attack any vague standards by demanding information about how employees have actually performed and the ratings they have received. Why? Because that will empower them to bargain over reducing the adverse impact of vague standards and possibly file a grievance if they have been applied unevenly.  I have always found that a substantial information demand often energizes management to do better.  Of course, unions can wait to make this information demand until an employee is put under a PIP.

A situation that has stuck with me for many years involved employee who were required to respond to a claim within 10 days of receiving it.  For years they had received between 20 and 25 new complaint claims a week.  Suddenly, based on something Congress did they were getting over 100 new claims a week and the agency did nothing to change the 10-day response requirement. FLRA held the agency was not obligated to negotiate over the change from 25 to 100 new claims a week because it was Congress, not the agency, that made the claim. In fact, FLRA held the agency had no control over the situation.  Union’s need to anticipate situations like that.  One approach would be to propose that when standards are written objectively, like the ten-day response requirement, even though the workload can vary, the agency needs to refine the standard.  If it refuses and you cannot get progress through bargaining, that is when unions should involve the media and/or some Congressional rep to expose the agency’s refusal to face reality.

The court case is Angelique Von Kelsing,  v. Dep”t. of the Navy, (Fed Cir. No. 2024-1723 (October 5, 2024)

Let me close with a little bit of infuriating irony. Nothing in the law requires that courts issue WRITTEN decisions, but they do.  Why? Because if they just orally announced their decisions, there would be chaos in the legal world.  Everyone would claim the law was whatever they think they heard.  Written decisions and standard provide social order and the same is true in the workplace.