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How Do I Deal With an Employee's Unacceptable Performance?

 

 
Typical Scenario:

 
You have an employee who is not turning in work of an acceptable quality or regularly turns in late work.

 
Principle:

 
Regular and frequent communication is important with all employees, but it is especially important when dealing with a possible performance problem. Ongoing communication between the supervisor and the employee should ensure that there is a common understanding of how the supervisor views the work being produced. While there may be disagreement, there should be no surprises.
Where Do I Start?

 
When you detect a performance problem, intervene early. Counsel the employee and try to determine the cause of the poor performance. This is critical if the employee has previously produced at an acceptable or higher level. Look for issues such as lack of training, motivation, employee "burn out," or some other cause (e.g., personal tragedy or conflicts with coworkers). The Employee and Labor Relations Branch (ELRB) should have a CD-ROM, "Addressing and Resolving Poor Performance: An Interactive Tool for Supervisors," which provides guidance. Also, the Office Personnel Management (OPM) has a website on "Dealing with Performance Issues." You can access it at http://www.opm.gov. Go to the Index and look for "Poor Performers" or "Performance Based Actions." If problems persist despite valid and repeated efforts to provide training and improve motivation, then contact your Employee Relations (ER) Specialist to discuss the problems and follow the procedures outline below.

 
Rules and Flexibilities:

 
Under Governmental rules, you may act any time an employee's performance becomes unsatisfactory. An employee must have an opportunity to demonstrate acceptable performance after having been informed that performance has been unacceptable and informed of what is expected as acceptable performance. This opportunity is given through a written Opportunity to Improve (OTI). If performance does not improve, you may reassign, demote, or remove the employee following a prescribed set of rules established by law. An employee serving a probationary period (usually the first year of Federal service) whose performance is unacceptable can be removed with a minimum of formal procedure. You should consult with your ER Specialist about the procedures applicable to probationary employees.

 
Basic Steps:

 
  • Make sure that every one of your employees has performance elements and standards that you established for his or her position.

 
  • Maintain records of employees' performance. As soon as you believe you have a performance problem, document it, and consult your ER Specialist early for guidance. Make sure that there is a strong case showing that the employee is performing unsatisfactorily in one or more critical elements of his or her job, as defined in the performance plan.

 
  • Notify the employee in writing of: (1) the critical element(s) in which performance is unacceptable, and (2) the level of performance that you expect the employee to reach. This is referred to as the Opportunity to Improve (OTI), during which he or she has the chance to demonstrate acceptable performance. Contact your ER Specialist who will help you with these procedures.

 
  • Provide the employee with a reasonable opportunity to demonstrate acceptable performance (at least 60 days, usually 90 days) and offer appropriate support, e.g., training, counseling, and/or supervisory assistance.

 
  • At the end of OTI period, assess the employee's performance to determine if improvement has been made to an acceptable level, as identified to the employee.

 
  • If improvement is inadequate, you need to decide either to reassign, demote, or remove the employee. If you decide to demote or remove the employee, you need to issue the employee a formal advance written notice of this proposed action. Consult with your ER Specialist for guidance on how to proceed.

 
  • A higher level official will issue a final written demotion or removal decision (generally within 30 days) following the employee's timely reply.

 
  • If an employee wishes to appeal a demotion or a removal, he/she must choose one of the following three procedures: (1) appeal final action to the Merit Systems Protection Board (MSPB); (2) grieve final action through a negotiated grievance procedure, if applicable; or (3) file an EEO complaint if unlawful discrimination is alleged.

 
Forms Needed:

 
The employee must have current elements and standards. An AD-2000-A (Opportunity to Improve form) and other letters or memoranda are used to notify the employee of the opportunity to demonstrate acceptable performance and the proposal and decision to demote or remove the employee.

 
Time Frames:

 
It is normally prudent to allow the employee to be covered by current performance standards for a minimum period of time (90 days) before formal corrective action is begun. Also, the employee normally should be given at least a 60-day opportunity period to demonstrate that he or she can perform the duties acceptably. The formal notice advising the employee that you are proposing his or her demotion or removal must be issued at least 30 days in advance of the proposed effective date of the action, and the employee must be given at least 15 days to respond. These are the legally minimum time frames, you may also need to consult the any applicable collective bargaining unit agreement for additional mandated time frames.

 
Good Management Practices:

 
  • Make sure any supplemental performance standards, which clarify generic standards, are stated in a positive, objective, and measurable manner; that they are reasonable for the position; that they in fact relate to the actual work assigned; and they are consistent with other similar positions in the office.

 
  • Focus on performance, not conduct. For example, failure to complete daily reports in a timely manner is performance; failure to return from lunch in time to complete daily reports is a conduct issue.

 
  • It is always a good idea to maintain ongoing files documenting employees' performance, both positive and negative. For "problem employees," it is particularly important. Documentation need not be lengthy or overly detailed. Including an example of a noteworthy work product is often helpful. This documentation can also be helpful in preparing annual performance evaluations.

 
Checklist:

 
  • Early intervention/counseling
  • Ongoing communication
  • Ongoing file of employee performance
  • Written opportunity period
  • Offer appropriate support
  • Formal notice of proposal (if improvement not made)

 
A NOTE ON SES . . .

 
  • Each new career SES employee is required to serve a one-year probationary period. During this time, it is important to observe and evaluate the employee's performance so that remedial action can be taken if necessary. In some cases, additional training might be all that is needed, while in others, removal from the SES might be appropriate.

 
  • It is not necessary to give a final rating of unacceptable performance to remove an employee during the SES probationary period, but a written notice, given at least one day in advance, is required.

 
  • Career SES employees who have completed their probationary periods must be given a 30-day advance written notice of proposed removal from the SES, and the removal must be based on a final SES performance rating. (In some cases, your may not have to wait for the end of the rating cycle to give a final rating. Consult with the Director, Office of Executive Resources if there is a problem requiring immediate attention.)

 
  • Employees removed in this manner are not given an "opportunity period," but may request an informal hearing before the Merit Systems Protection Board. (See "Glossary.") The Board cannot change a rating or order reinstatement, but can recommend action if it appears an error has been made. The fact that a hearing is requested or held does not delay the removal.

 
  • If an SES employee receives a single rating of "unsatisfactory," you have the option of reassigning the employee or removing him/her from the SES. If an employee receives two unsatisfactory ratings in any consecutive five year period (or two less than "fully successful" ratings in any consecutive three year period), you must remove the employee from the SES.

 
  • Career SES employees must also be removed if they are not recertified under the recertification process that occurs every three years. In some cases (e.g., performance is not so deficient as to warrant immediate removal), employees may first be given a conditional recertification along with a Performance Improvement Plan and 12-month opportunity period. Employees removed from the SES for failure to be recertified have formal appeal rights to the Merit Systems Protection Board.

 
  • In certain circumstances, it may be necessary to delay a removal as a result of a change in agency head or supervisor. The SHRO can advise if this is applicable to your case.

 
  • Most career SES employees who are removed from the SES for performance reasons will have "fallback" rights to a GS-15 position. You should be aware that you may still have to accommodate the employee in another position within your organization.

 

 

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