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  • Q. I've been placed on a performance improvement plan and told I will not be removed so long as I do not do certain things. Should I be concerned about this plan?
    Posted On: Apr 01, 2016

    Q. I've been placed on a performance improvement plan and told I will not be removed so long as I do not do certain things. Should I be concerned about this plan?

     

    A. Negative definitions in a performance plan or in a performance improvement period should raise red flags. Defining what something is not does not usually give you a strong sense of what it actually is. And the same is true with negatively defined performance standards, also known as "backward standards."

     

    Federal regulations prohibit agencies from removing or demoting employees because of their performance without first affording them "a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee's position." Further, the law requires agencies to communicate to employees "at the beginning of each following appraisal period...the performance standards and the critical elements of the employee's position." Backwards standards generally do not satisfy this notification requirement.

     

    An example of a backward standard was discussed in the Merit Systems Protection Board (MSPB) case Larry Van Prichard v. Department of Defense (2011). In this case, the agency had a five-tiered performance appraisal system, and the appellant could not be removed for poor performance so long as he achieved a marginally successful level of performance. However, the agency did not make a distinction between marginally successful performance, which merited retention, and unacceptable performance, which merited removal. Instead, the agency negatively defined the marginal rating as "performance that is 'less than Fully Successful and supervisory guidance and assistance is more than normally required.'"

     

    The MSPB refused to sustain the agency's performance-based removal because this backward standard, "although it is written at the 'minimally successful' level, it fails to inform the appellant of what is necessary to obtain an acceptable level of performance, and instead describes what he should not do." The Board further noted that it was not enough for the agency to just inform the appellant "of what duties he was required to perform in his position and/or during the PIP." The agency must also detail "the level of performance he was expected to achieve to retain his position."

     

    Employees who are facing performance-based adverse actions, including placement on a PIP, should immediately consult with an experienced federal employment law attorney.


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