The technical topic of performance standards and plans (standards are contained in plans) is typically confusing for federal managers, union officials, and employees alike. The topic is convoluted by years of wrongly held preconceptions by all parties, layers of agency regulations, collective bargaining terms, statutory law, federal regulations, and a body of seemingly confusing and contradictory case law. Nevertheless, it is important to have a basic understanding of this subject since this is the basis from which performance based adverse actions (Chapter 43 and Chapter 75) are undertaken. This article presents a general discussion of the topic. You should consult applicable agency regulations and collective bargaining agreements for specifics applicable to your environmental circumstances.
When dealing with a poor performance issues, agencies may use Chapter 43 or Chapter 75 based actions. This depends on the specific circumstances of the case. Chapter 43 provisions allows an employee a chance to improve before action is taken whereas a Chapter 75 action is appropriate when an improvement period is not recommended or is reasonably believed to unlikely result in improvement.
Performance plans are simply the collective written or otherwise recorded performance elements concerning and expressing expected performance. A plan must collectively include all critical and non-critical elements and related performance standards. There are instances in which a complete plan may consist of multiple documents.
Performance Standards in General
Generally speaking, performance standards identify functions, tasks of a position, and required performance to achieve a specified rating (usually indicated as fully successful or better). The structure of the standards can vary greatly. However, as a general and measurable basis (think MSPB appeals of performance based actions), they must be reasonably attained by the employee, objectively tied to performance, and measurable. All standards are required to have at least one critical element. Though not required to contain non-critical elements, it is highly recommended. It is important to note a critical element is just that- critical. It is critical in that an employee’s failure to perform a single critical element successfully, as determined by the agency, will result in an overall rating of unsatisfactory, irrespective of performance on any other elements, critical or non-critical. Subsequently, the likely immediate outcome is a Performance Improvement Plan (PIP). A possible long-term outcome is a proposed adverse action (demotion or removal) if the employee does not improve his or her performance during the PIP.
The Code of Federal Regulations covers definitions relating to performance standards significantly at 5 CFR 430.203. Therefore, we will not redundantly cover them in this article. However, collectively, the definitions express the concept that performance standards are agency approved expressions of performance requirements and expectations that must be achieved at a particular level. Performance standards typically include (not limited to) quality, quantity, timeliness, and manner of performance factors. However, standards should be specific and clear enough to provide an employee with a “firm benchmark.” See, Henderson v. National Aeronautics and Space Administration, 111 LRP 7619 , 116 MSPR 96 (MSPB 2011). Supervisors must be aware that any performance based action will open performance standards to critical review by MSPB. MSPB will determine the validity of the standards, whether either party raises the performance standards.
Issuance of Standards
We often receive inquiries from employees mid-year who have not yet received performance standards. This is a significant issue and employees should demand their standards very early into the performance cycle (check your own agency regulations for agency specific details, however, it is typically within 30 days of the start of the performance rating period). In our practice, we issue new standards at the same time we close out the performance cycle. However, this is not practical in all circumstances. Nevertheless, 5 USC 4302 (b)(2) requires agencies to ensure employees are aware in advance of performance standards and critical elements. In an a Chapter 43 performance based adverse action, the agency will be required to prove the employee was made aware of the elements and standards of the position at the beginning of the appraisal period. See, Cross v. Department of the Air Force, 84 FMSR 6093 , 25 MSPR 353 (MSPB 1984); King v. Department of Veterans Affairs, 108 LRP 61068 (MSPB AJ 2008). However, an agency may rebut a claim that a document containing performance standards was not issued by demonstrating other means of making the employee aware were utilized. In short, even in the absence of clear communication of standards, MSPB may uphold a performance based action if the affected employee was aware of performance requirements and understood them. See, Gonzalez v. Department of the Army, 89 FMSR 5102, 40 MSPR 241 (MSPB 1989).
“Validity” of Performance Standards
Another common query we receive concerns dispute over the substance of performance standards (and collectively, plans). In short, the employee simply does not like or agree with the performance standards and claims that makes them invalid. In the context of employee relations (versus labor relations), for example on appeal to MSPB, this would be a tough claim to make. Clearly, employees are entitled to challenge the validity of performance standards in defense of a Chapter 43 performance based adverse action. See, Evans v. Department of the Treasury, 84 FMSR 6037, 24 MSPR 571 (MSPB 1984). However, an agency maintains considerable discretion in determining what performance elements for a position will be and how they will be measured. See, Winlock v. Department of Homeland Security, 109 LRP 12829 , 110 MSPR 521 (MSPB 2009).
The Federal Labor Relations Authority consistently ruled the content of performance elements and standards is nonnegotiable. However, collective bargaining units in the Federal service address performance standards to varying degrees in the form of procedures for establishing performance plans as well as arrangements for employees potentially affected by an agency’s establishment of performance elements and standards. Regardless, the determination of the content of performance standards is a management right. See, Defense Contract Management Agency, 103 LRP 47910 , 59 FLRA 396 (FLRA 2003); also, Bureau of the Public Debt, 80 FLRR 1-1367 , 3 FLRA 769 (FLRA 1980), later, affirmed NTEU v. FLRA,82 FLRR 1-8057 , 691 F.2d 553 (D.C. Cir. 1982). Furthermore, management rights to direct employees and assign work includes the right to establish quantity, quality, and timeliness of employee work products, and to determine work priorities. See, Army Aviation and Missile Command, 101 FLRR 1-1081 , 56 FLRA 1115 (FLRA 2001).
Clearly, it is in the best interest of the employee to address issues concerning performance standards on the front end, rather than the back end of an appeal arising from a performance based adverse action. However, both employees and union officials need to understand the odds are decidedly stacked in favor of management. Many union officials erroneously believe they can challenge performance standards. This erroneous belief often stems from an inaccurate interpretation of contract language requiring agencies to first notify unions of proposed changes to performance plans/standards. Such notification does not obligate the agency to bargain over such matters.
The Bottom Line
Chapter 43 performance based adverse actions are difficult to appeal. Also, the election of the wrong venue for appeal, for example EEO versus MSPB, can significantly impact the viability of an appeal. If you are the subject of an adverse action (removal, demotion, suspension of fifteen days or more) and wish to appeal, it is important you seek expert consultation as quickly as possible. There are instances in which an appeal is merit-less and simply not viable. However, even in those instances, a settlement or Last Chance Agreement (LCA) is always possible and could preserve future employment opportunities. Feel free to contact us for a no cost or obligation initial assessment.
For additional primary source information concerning performance standards and plans, visit this Office of Personnel Management (OPM) link.
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