Employee Performance

pen and paper

Managers and supervisors are responsible for holding their employees accountable for their performance. Employees who do not adequately perform their jobs can be removed from Federal service. There are certain procedural requirements a supervisor must satisfy before removing an employee for unsatisfactory performance under Chapter 43 of Title 5 of the United States Code. Those requirements include providing the employee with notice of unsatisfactory performance and an opportunity to improve. This is commonly referred to as a Performance Improvement Plan (PIP).

ELLU encourages managers and supervisors to update and review annually the Employee Performance Appraisal Plans (EPAPs) for all of their employees to ensure that the EPAPs accurately reflect the duties of the position and that the minimally successful performance standard for each critical element is properly defined for the employee. Employees should be placed on notice of the minimal standard they must meet to avoid an unsatisfactory performance rating. ELLU and employee relations (ER) staff can assist managers with drafting legally acceptable minimally successful standards.

Non-probationary employees removed for unsatisfactory performance may file an appeal with the Merit Systems Protection Board (MSPB) to challenge their removal. Individuals who have not completed their probationary period, on the other hand, generally have very limited MSPB appeal rights. Bargaining unit employees may grieve a performance-based removal under the negotiated grievance procedure in a collective bargaining agreement rather than challenging it to the Board.

Managers should work with ER staff and ELLU attorneys before initiating any performance-based action against an employee -- including denial of a within-grade increase (WIGI) -- to ensure the proper procedures are followed. ELLU attorneys can provide advice on how and when to:

  • document performance deficiencies;
  • communicate performance deficiencies and expectations;¬†and
  • provide reasonable opportunities for improvement.

If an employee appeals a performance-based action or grieves the removal under a collective bargaining agreement, ELLU attorneys will defend the agency in the litigation.

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