The word is quietly passing around among managers urging those agencies that have an appraisal system with a level between Fully Successful and Unacceptable for each element to abolish that rating level. It is commonly called Minimally Successful or Minimally Acceptable level.  Abolishing it makes it easier to fire employees because it removes a critical protection employees now have. Here is a brief description of what that protection is and what unions can do if the agency tries to abolish the rating level.

Under the recent Santos decision that we wrote about earlier this year, an agency cannot impose a PIP for unacceptable performance unless it can prove that the employee was performing unacceptably in at least one critical element before the PIP was issued. If an agency uses a Minimally Successful rating level and has not defined it (or has defined it with an ambiguous or generic standard that hardly communicates what an employee must do to be at least Level 2, and thereby avoid an unacceptable action), it likely will be very hard to prove the employee failed to meet the level 2 standard. In a case known as Henderson v. NASA, 2011 MSPB 12 (2011) the MSPB spelled this out:

The administrative judge correctly found that each element of the performance plan has five possible ratings, i.e., “fails to meet expectation[s],” “needs improvement,” “meets expectations,” “exceeds expectations,” and “significantly exceeds expectations.” The performance standard for the appellant’s position, however, only sets forth one level of performance, i.e., what one must do to “meet” the standard.  Where an appellant is rated on a five-tier system for his critical elements, the agency must inform him, at a minimum, of what he must to do to perform at the “needs improvement” level to avoid a performance-based action….Therefore, because the agency’s five-tier performance appraisal plan is based on a single written standard of satisfactory performance, the administrative judge correctly found that it violates the statutory requirement of objectivity because it requires extrapolation more than one level above and below the written standard. (Citations omitted).

Some agencies will try to correct this flaw by omitting Level 2 ratings for each element and just relying on the written standard for Fully Successful.  If they do, the union has the right to demand to negotiate over at least the adverse impact and procedural implementation of that change. Those agencies with current Level 2 standards likely will try to refine the current standards so that they are clear enough to meet the Santos demand. Again, the union can negotiate before implementation of that change.  And do not be surprised if either type of agency tries to get away with creating a properly defined standard for an individual employee it has in its sights a few weeks before the PIP hammer is dropped or in the PIP letter.  That might be done via a counselling memo or e-mail. If they do, unions should demand the standard be withdrawn until the union is given proper notice of the standard and an opportunity to bargain over the impact and implementation. That is a unilateral change pure and simple.

In the meantime, the agency might be blocked from using the Unacceptable Performance process to remove the employee, but it always use the Adverse Action process.

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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