Legal Insider: Performance improvement plans for federal employees

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By Melissa L. Watkins, Esq. 

Performance Improvement Plans (PIPs) can be a dangerous proposition for federal employees.

Federal employees who realize that a PIP is being considered, should be wary and consult with a federal employment attorney early on to make sure they maximize their chance of surviving a performance related action. In our experience, an employee being put on a PIP is usually heading towards more serious disciplinary action, such as demotion or removal.

Federal employees often will be told that a PIP is only designed to benefit them and make them better performers. Managers often promise employees that they will be given special assistance to ensure they are successful during a PIP period, only for the employees to later find themselves facing a potential demotion or removal some months later having not received any of the promised assistance during the process. In many ways, the deck is stacked against the employee when facing a PIP.

Opportunity to Improve

If an employee is said to be having performance issues, before an agency can take any action to demote or remove the employee, the agency must notify the employee of the concern and give the employee an opportunity to improve. This notification and opportunity to improve is usually accomplished by the agency placing the employee on a PIP. Through the PIP, the agency must inform the employee what performance is not acceptable, what critical performance element(s) are at issue, what standard the employee must meet to be found acceptable, and provide a warning to the employee that if their performance does not reach an acceptable level, the employee could be demoted or removed.

What To Do If Placed on a PIP

There are a few things that an employee can do once receiving a PIP to give themselves the best chance at being successful. Those things include:

• Providing a response to the PIP. While the PIP doesn’t afford a traditional response process, an employee can always put together a response nonetheless. In such a response, the employee should identify any concerns with the PIP and provide examples, if they exist, of how the employee has been performing successfully on the elements at issue.
• Don’t wait to start demonstrating improvement. Even if the employee disagrees with the PIP or the alleged performance concerns, the employee should start working on meeting the performance expectations outlined in the PIP. Waiting too long to address the performance issues can sometimes lead to the employee running out of time in the PIP process.
• Document everything. Once a PIP is issued, one of the employee’s best tools is documentation. For all tasks completed relevant to the PIP, the employee should save documentation showing the task and its completion. The employee should also keep a log of all assistance received and all feedback provided from the supervisor. As mentioned above, if an agency fails to provide feedback or assistance, it can impact the agency’s ability to move forward with disciplinary action.
• Request an Accommodation. If the employee believes that the performance issues are related to a disability, the employee should request an accommodation as soon as possible. The accommodation will not stop the PIP, but ideally, the accommodation will allow the employee to be better able to meet the performance expectations outlined in the PIP.
• Keep an eye on the use of leave. An employee can use leave during a PIP period. An employee on approved leave (annual, sick, or leave without pay) cannot be penalized for work that is not completed while on approved leave. Also, if an employee is on leave for an extended time during a PIP period, the PIP period may need to be extended to give the employee a meaningful opportunity to improve.

What Happens After a PIP

If the employee is still performing unacceptably after the PIP period, the next step is usually some type of discipline. The options include reassignment, demotion, or removal. If the employee is proposed for removal, he or she can be removed in a very short period of time after the decision on the PIP.

Given the potential serious implications of a PIP, employees who believe one may be issued, or have received a PIP, should consult with an attorney to determine how best to proceed. Our law firm advises federal employees in various employment matters. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.