WHAT ARE YOU DOING WITH YOUR NEW SANTOS RIGHT?

Almost a year ago the Federal Court of Appeals, in a case known as Santos v. NASA, made it just a little bit harder to fire federal employees for poor performance. It reversed a long-time precedent by declaring henceforth management will need to prove by substantial evidence that an employee was performing unacceptably BEFORE it puts him/her on a PIP.  Prior to this, an employee could be put on PIP for any reason—or no reason at all—because management was not required to prove a thing. While the court’s decision is a welcomed contribution to employee protections, it will mean little unless unions think creatively about how to use it. For example, … 

a union could just decide to wait until the employee is removed to challenge whether the agency had proper grounds for imposing a PIP in the first place.  That would happen as part of the appeal of the employee’s termination or demotion.  If the union can prove the PIP was improperly issued, presumably the termination or demotion would be reversed even if the employee failed during the PIP period. But, frankly, that is going to be hard to do because the agency needs only have substantial evidence and the judge or arbitrator’s opinion is going to shaped heavily by just how poorly the employee did during the PIP.

Although it is a judgement call, we think it would be better for unions to initiate mid-term bargaining to spell out a process for the agency to follow before it issues a PIP.  Installing procedural requirements before the agency can act gives the employee and union a chance to see the PIP coming and do something about it.  That is a lot better than a PIP coming out of the blue as happened to Mr. Santos who had 18 years of exemplary service before a new supervisor came on the scene who resented him taking leave for military reserve duty.  Moreover, installing pre-PIP procedural requirements does not lessen the right to also challenge the grounds for issuing the PIP when the final decision to terminate or demote comes down.

Here are some procedural protections the union might want to pursue.

1. That the agency provide the employee a draft of the proposed PIP as well as copies of all work documents it is relying upon to show it has substantial evidence to impose a PIP. Ideally, this would be provided before the PIP is imposed.
2. That the employee be given the opportunity to deliver an oral reply to the proposed PIP. The court recognized that the employee has no statutory or regulatory right to appeal the imposition of a PIP at the time it is issued. Absent some negotiated right to appeal, the employee’s first chance to even mildly challenge an agency PIP would be after s/he is demoted or fired. A pre-PIP reply would give both parties a chance to correct errors. An additional benefit of a pre-PIP meeting would be to informally reach agreement on some changes to the PIP.
3. That the agency be able to show that the specific work standards or demands it proposes to place on the employee during the PIP were actually in place and enforced as conditions of employment before the PIP was imposed. Too often the agency’s critical element will impose some vague standard like, “Work shall be completed timely once assigned.” Yet, when it imposes a PIP it spells out in detail that “an assigned case must be completed within ten workdays.” Under labor law, if that ten-day standard was not the established practice before it cannot be imposed without notice to and bargaining with the union. Unilateral implementation of it could be a fatal agency error.
4. That the agency accepts a negotiated right to certain types of information. While a union could rely on its statutory right to information to help the employee through the Pre-PIP process, it would be better to negotiate a list of the things the union would be entitled to before it must make its reply. That would reduce the chances of litigation.

If agency refuses to negotiate over the union’s mid-term bargaining initiative, it creates a significant liability for itself.  If the union files a ULP alleging an illegal refusal to bargain and wins, the final order might include a requirement that the agency retroactively implement any proposals ultimately agreed upon and give the employee a second chance to appeal.  That could put multiple agency unacceptable performance actions in jeopardy.

Finally, when challenging a PIP on the grounds that the agency lacked substantial evidence that the employee actually was performing unacceptably before it was issued, it will help if the employee and union can identify some reason the agency acted if the performance was acceptable.  Mr. Santos alleged it was due to the supervisor’s resent about his military leave.

A complete copy of the court’s decision can be found at Santos v. NASA, No. 2019-2345 (Fed Cir. 2021)