Employees who successfully make it through a PIP walk on very thin ice for the 12 months afterwards.  If their performance falls below the required standard during those 365 days, they can be terminated without another PIP opportunity to improve. Here is the post-PIP rule.  

“The agency may remove an employee for unsuccessful performance under chapter 43 after the successful completion of a PIP if: (1) the instances of unacceptable performance are in the same critical elements involved in the PIP and (2) the agency’s reliance for its action is limited to those instances of performance that occur within 1 year of the advance notice of the PIP.”

However, a 2012 MSPB decision puts a little more support under the very vulnerable post-PIP employee.  The Dept. of Commerce put an employee, Ms. Mary Ann Muff, on a PIP and at the end of it declared her performance was once again acceptable. The employee continued to perform acceptably for the first six months and months eight and nine.  But during the seventh month she missed the 90% achievement performance standard by 3 percentage points and the agency decided to remove her before the first year was over.

MSPB overturned the removal because it concluded the agency acted unfairly when isolating only one month of performance over a nine month period.  It was largely swayed by the fact that the numerical standard was written as an annual measure of success, but the agency without explanation tried to apply it to each individual month’s work.  No, no, no, said the Board.  It proclaimed that the agency cannot just cherry pick an isolated period of time in the twelve month post-PIP period unless the critical element standard is written as a monthly, weekly or other designated measurement period.

The Board put it this way, “The Board held that the agency’s action can be sustained only if the evidence shows her performance was unacceptable under the annual standard for this critical element. Here, the appellant’s performance was measured monthly, but it was evaluated on an annual basis. IAF, Tab 18 at 60. Under Brown and Sullivan, the administrative judge properly found that the agency’s action based on a single month measure of performance applied the annual performance standard in an unreasonably strict manner. ID at 10. The administrative judge properly determined, consistent with Sullivan, that the agency’s showing did not constitute substantial evidence of genuinely unacceptable performance in the context of the employee’s annual performance plan.”

The Board made clear that it was unfair to punish the employee for a temporary drop in production when she was performing acceptably over the longer period of time.

This case makes it quite clear that union negotiators should try to convince management to write critical element standards as annual measures—or at least for a period of longer than one month.

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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