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Frequently Asked Questions Employee Relations

  • Technically, the within-grade increase determination is based on the most recent rating of record as long as it was issued within the last year. However, the regulations provide that a supervisor, in making an "acceptable level of competence" determination, may issue a new rating if the most recent rating does not reflect the employee's current performance. Consider the case where an employee's within-grade increase is due in 3 weeks, the last rating was Fully Successful, and the employee was given an opportunity to improve that began last month. You would need to decide whether the employee's current performance has come back up to Fully Successful, and if so, you would approve the within-grade increase. However, it is more likely that the current performance is still below the acceptable level, in which case a new rating needs to be issued to support the denial of the within-grade increase.
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  • This answer depends largely on whether you proceed under Part 432 or Part 752. Under Part 432, you have the option of demotion or removal and you do not have to defend your reasoning for choosing either action. As was noted in Figure C, mitigation to a lesser action by a third party is not possible. So, if you meet the requirements of proving that the employee was unacceptable, even after being given an opportunity to improve, no third party can challenge your reasons for removing instead of demoting the employee. Therefore, your decision is based on your analysis of whether the employee can function acceptably in a lower graded position or not. Some agencies may have policies that require supervisors to explore demotion options before going to removal, but that policy would be an internal policy, not one that governs all Federal supervisors. However, reduction in the agency-selected penalty, known as mitigation, is a possibility in any action taken under Part 752. Therefore, you will need to explain in any decision notice, and possibly in a proposal notice as well, what factors led you to believe that your chosen action (suspension, demotion, or removal) was the right one. Most supervisors who have taken any kind of adverse action against an employee have been told about the Douglas factors. This is a reference to a decision by the Merit Systems Protection Board that listed 12 factors that might be taken into consideration when deciding on the appropriate penalty in any adverse action. Your human resources office will be able to provide you with a copy of these factors. At this point, it is sufficient to understand that the factors force a deciding official to examine any issues that might support a more severe penalty as well as those circumstances that would convince the deciding official to lower the penalty.
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  • Yes. More than that, as the employee's supervisor and "rating official," it should be your goal to keep an employee informed about your assessment of his or her performance, particularly when that assessment is negative. Within your agency, there may be a policy or practice you must follow when you notify an employee that his or her performance has become unacceptable. You should contact your human resources office for further information.
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  • Although we focus a great deal in this booklet on supervisory responsibilities for informing and assisting an employee, the employee has the primary responsibility for improving his or her performance. An employee who gives the boss "the silent treatment" and refuses to accept any assistance runs the risk of failing to improve performance during the opportunity period and suffering the consequences. You may want to consider contacting your human resources office and asking if the agency uses trained mediators or facilitators to break through some communication problems. Regardless, an employee needs to be told what the expectations are for his or her performance and the consequences if these expectations are not met. Be sure to document your efforts to communicate these expectations and consequences.
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  • Generally, annual leave and leave without pay are discretionary based on the needs of the office and could be denied based on the importance of focusing on improving performance in the time allotted. However, sick leave, supported by acceptable documentation, must be approved as long as the employee follows agency procedures for requesting the leave. As noted earlier, you should be aware of certain programs under the Family and Medical Leave Act of 1993 and the Family Friendly Leave Act of 1994 that may require you to approve leave.
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  • As a general rule, you should give your employee a copy of the notes from a discussion or meeting that pertain to your expectations and responsibilities as well as the employee's responsibilities. It is expected that you may take "supervisory" notes to serve as "memory joggers" regarding the employee's performance. For example, these notes can include dates or the number of times an employee was given an instruction. This type of "supervisory" information does not have to be included in the notes given to the employee. Contact your agency's legal counsel or human resources staff for information on Privacy Act requirements concerning supervisory notes.
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  • No. The law and regulations specifically exclude probationary/trial employees from the procedures that require the use of an opportunity to improve. This exclusion is because the entire probationary period is similar to an opportunity period. These employees should receive closer supervision, instruction, and training as needed during the first year of their employment.
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  • There is no legal obligation to provide counseling to an employee before beginning an opportunity period because of the employee's unacceptable performance. However, it is always good management practice to talk to an employee when his or her performance begins to slip below the acceptable level. Hopefully, early counseling efforts would be successful and there would be no need for a formal opportunity period.
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  • As stated earlier, if you take a performance-based action under Part 432, you must provide an employee with a formal opportunity to improve. On the other hand, Part 752 does not require a supervisor to provide an employee with such an opportunity. One reason for not providing an opportunity period may be that your employee has several years of experience in the job and additional training would prove useless. Another reason may be that your employee has already received extensive informal training and additional training or assistance would seem unreasonable.
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  • The question of who is "disabled" under the law is one that is still confusing to experts. In most cases, you will want to turn over any documentation you receive from the employee to the human resources office so that they can obtain a physician's review of the employee's medical documentation. Once you get a decision from the medical experts that the employee's condition significantly impacts his or her ability to perform, you will need to carefully consider what the employee is requesting in the way of accommodation and assess whether or not you can provide the accommodation.
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