PROTECT YOUR “SANTOS” RIGHTS

Two years ago the Federal Circuit Court of Appeals reversed an MSPB decision holding that “an agency must justify institution of a PIP when an employee challenges a PIP-based removal.”  In other words, when an agency takes unacceptable performance action against an employee it must not only prove that the employee failed to meet the standards outlined in the PIP.  It also must prove, if challenged, that the employee was failing to meet the performance standards before the PIP was imposed. We wrote about it in a post entitled, “ What Are You Doing With Your New Santos Rights?” But, it appears that agencies are whipping themselves into a frenzy over a new MSPB decision which they interpret as undercutting the value of the Santos precedent.

The new case, Cadena v. DHS, holds that “that proof of a pre-PIP warning of unacceptable performance is not required to defend an action under chapter 43.”  So, this sets up the near-absurd situation where an employee’s supervisor can see that the employee is failing to meet his standard and not say a word about that until management hits the employee with a PIP.  Unions need to use their collective bargaining rights to propose a solution to that in their negotiated contracts or agency policy manuals. Perhaps something like, “Supervisor will promptly notify employees when their performance fails to meet standards” or “Should a PIP be imposed without prior notice to the employee that s/he is failing to meet performance standards, the supervisor will give a detailed explanation of why s/he allowed an employee to perform below standards without promptly bring this to his attention and helping him correct the deficiency.”