LOVE THIS PIP PROTECTION IDEA

Being put on a PIP is often the beginning of the end for an employee. The manager uses it to focus the crosshairs on their target and all that remains is to pull the trigger. MSPB and arbitration can stop some management abuses, but not the big one.  By that I mean that they cannot mitigate a penalty imposed in an unacceptable performance action. Consequently, unions need to place as many employee protection devices in the PIP process as they can. An old AFGE arbitration victory started me thinking about this when I read that the union had negotiated the following clause into its agreement:

After this determination (that the employee is perfgorming unacceptably), the supervisor shall develop in consultation with the employee and local union representative, a written PIP.

Anything a union can do to influence the content of the PIP is a huge win.  Labor law gives managers the right to make the final determination as to what shall be in a PIP.  Stated differently, the final wording is non-negotiable.  However, nothing bars the union from asking that it be consulted.  In addition, nothing bars the union from spelling in negotiations out in detail how that consultation will go. For example, it could propose that  once the manager has determined that the employee is performing unacceptably, the manager will give the employee and union all the evidence they relied on to meet their Santos burden. (If you do not know what a Santos burden is, check it out here.)

Once the union has that evidence, it should have the negotiated right to respond to it, e.g., push for further details, access to the work documents relied upon, etc.  Once the response is in, which might be delayed by a union information request—and which could be the subject of another very long FEDSMILL post, the union agreement should call for the supervisor to address the response and propose the PIP details, if any.

At that point, the union’s contract should permit the union to meet with the manager for a face-to-face interaction about the PIP. (In some ways this discussion should be like the “interactive process” required under the Rehabilitation Act when the employee requests a reasonable accommodation. Ironically, this is also where the employee should request any reasonable accommodation they might be entitled to.) The face-to-face should be followed by giving the union the right to submit a final proposed PIP.

Once that is done, the supervisor should be required to issue the union their final decision—along with an explanation as to why the union’s suggestions were rejected.

Managers will probably hate all this additional work. So, remind them that a PIP is not only a virtually guaranteed one-way trip to the unemployment line and a family’s loss of income, but that it was management that made the appeal process so unfair by denying MSPB, the courts, and arbitrators the ability to mitigate an unacceptable performance penalty. Unions have nothing to apologize for in thoroughly protecting employees from PIPs.