By John V. Berry, Esq., www.berrylegal.com
Our law firm represents federal employees who have been placed on a Performance Improvement Plan (PIP) relating to alleged poor performance. Federal employees should always be wary if they learn that a PIP is being recommended or considered as a means of correcting a federal employee’s work performance. In our experience, the issuance of a PIP almost always indicates the beginning of the removal or reassignment process for a federal employee. Federal employees, however, are usually told that a PIP is only designed to benefit them and make them better performers. This, unfortunately, is not the usual case.
Supervisors often promise federal employees that they will be given special assistance to ensure they are successful during their PIP (or perhaps even assigned a mentor), only to later find themselves facing removal a few months later when they have not received any of the promised assistance during the process. For this reason, it is crucial that a federal employee facing a PIP, or those who have just received a poor performance evaluation, to take proactive steps to protect themselves. This should include obtaining legal advice and possible representation.
The Opportunity to Improve
PIP procedures were enacted by Congress in Chapter 43 of the U.S. Code. The federal statutes and regulations prescribing the PIP process emphasize the importance of providing a federal employee with a meaningful opportunity to improve during the PIP process. A PIP, as envisioned, was meant to assist employees in correcting poor performance. As part of this meaningful opportunity to improve, an employee generally must receive the assistance promised by the federal agency at the onset of the PIP period. Moreover, a supervisor’s negative actions toward an employee during or after the performance of his or her PIP period may constitute a violation of PIP procedures.
A Reasonable Opportunity to Succeed
When placing a federal employee on a PIP, a federal agency is required to provide that employee with a reasonable opportunity to demonstrate acceptable performance during the PIP process. It is quite often the case that this requirement is not followed. We commonly see PIPs issued to federal employees that require the completion of tasks that are not part of their normal job duties, tasks for which they have no training, or tasks require far more time than has been provided to complete. As discussed above, often times a PIP is the first step toward attempting to remove a federal employee from his or her position. If an employee is not given a reasonable opportunity to succeed, this can be raised as a defense to a PIP result.
Length of the PIP Process Varies
PIPs normally tend to run for 90 days in duration (although 60 and 30 day periods also occur, depending on the agency involved) and are usually very detailed and lengthy.Most PIPs list regular meetings during the course of the PIP and required deadlines throughout the process. Under specific circumstances, a PIP can be extended by managers.
The Result of a Successful PIP
If the federal employee succeeds on a PIP, they are not completely free of potential action. A federal employee must generally remain free of performance issues for a period of 1 year from the start of the PIP with respect to the critical elements previously found deficient. See 5 C.F.R. 432.105
The Result of a Failed PIP
A failed PIP can result in removal, demotion, or reassignment. In our experience, the result of the PIP is often predetermined by the agency and the outcome proposed tends to be removal. In some cases an individual may be demoted, re-assigned or moved. It is important that a federal employee have legal representation at this stage (if not earlier) in order to attempt to mitigate the effect of a failed PIP.
At the end of a PIP, if the employee has been deemed to have an acceptable level of performance there is no need for any action except to continue providing feedback and encouragement to the employee. If the federal employee is still performing unacceptably, however, the next step is for the proposing official or supervisor in charge of the PIP to determine next steps. If the employee is proposed for removal, he or she will be afforded an opportunity to reply orally and/or in person to argue the reasons why the PIP was improper, unfair or why the action should not proceed. Following the response process, a federal employee can be removed in a relatively short period of time after the decision on the PIP. The federal employee can then usually appeal an unfavorable PIP to the Merit Systems Protection Board (MSPB) or the Equal Employment Opportunity Commission (EEOC) or other applicable venues.
Strategy for Dealing with Performance Improvement Plans
When facing a PIP there are some potential defenses for federal employees such as the following:
1. The agency gave no meaningful assistance to the employee during the PIP period even though they assured the employee that they would;
2. The agency claimed the employee did not perform well on an area of the PIP even though its issue or problem with the employee’s performance was not listed in the PIP;
3. The agency designed a PIP that was impossible for the employee to pass; or
4. The agency prepared the PIP in a purposeful effort to fail the employee.
We represent employees in federal employee retirement and employment matters. If you need assistance with a federal retirement or an employment issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.