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Frequently Asked Questions Employee Relations

  • We have provided a sample of an action proposed under Part 432 in the appendix to this booklet, but the real answer to this question lies in your agency. Each agency has a "culture" that defines the amount of information and documentation that will go into a proposal notice. At a minimum, your notice will state which regulation the action is being taken under, specify what critical performance element(s) the employee failed to meet, cite the evidence of unacceptable performance, and discuss the opportunity period (or the lack of one). The notice will also explain to the employee the time allowed for a written and/or oral response. Ask your human resources specialist for some samples of other performance-based notices to get a sense of what your agency requires.
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  • Because the meeting is not disciplinary or investigatory in nature, you are not obligated to allow union representation. The purpose of the meeting is to explain your expectations of the employee and describe any specific efforts you will be making to assist the employee in improving his or her performance. Although any employee who is being told that his or her work is unacceptable will view this as a negative process, it is a meeting to discuss methods of assisting an employee and is not disciplinary or punitive in nature.
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  • One of the most important things to remember in taking notes is to date them so they reflect when you met with an employee or when you noted a particularly good or bad instance of performance. Keep track of specific examples of poor performance on work assignments. Doing so will make it easier for you to explain what's wrong with the employee's performance through the use of examples. Note how you expressed your performance expectations and how the employee responded to the counseling. Once an opportunity period (see Step Two for an explanation of an opportunity period) has begun, you will need to make notes of all routine meetings with the employee. In addition, you may need to keep a record of when assignments were given to the employee and what instructions were provided.
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  • Your first step always should be to convey a clear message to the employee about what your performance expectations are. Performance standards that do not relate to the job need to be rewritten so there will be no confusion between your oral instructions or written guidance and the performance standards themselves. If the new standards that you have written are substantially different from the old ones, you will need to give the employee a chance to work under the new standards before you determine whether or not the employee's performance is unacceptable. As discussed later in Step Three, you do not always need to rely on formal performance standards, depending on the legal authority under which you take action. But you run a serious risk of either having your action overturned or mitigated upon appeal if the employee can demonstrate that his or her performance expectations were not clear.
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  • No, you should not wait. In fact, good managers provide their employees with performance feedback throughout the appraisal cycle. The Office of Personnel Management reinforces this in its regulations where it states that employees need to be notified of unacceptable performance, "At any time during the performance appraisal cycle that an employee's performance is determined to be unacceptable . . . ." Notice also that the Governmentwide regulations only call for a determination, not a formal rating of record. Check with your agency on your internal policy regarding whether or not a full performance rating needs to be prepared before you inform an employee of unacceptable performance. Remember, regardless of whatever agency requirements apply, no employee likes to feel "sandbagged" at appraisal time, so confront the poor performance as soon as you become aware of it.
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  • Give supervisory feedback, provide remedial training, change work assignments, and assign a mentor.
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  • There is no requirement for formal classroom training. One option is to see how much of the training can be accomplished with the experts on your own staff. On-the-job training is probably the most common form of training provided during an opportunity period. Also, contact your agency training officer and find out what is available through self-instructional manuals, videos, or agency-funded training programs.
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  • Once you approve leave, you cannot hold the employee accountable for work that does not get done during the absence. In terms of short absences, you may not have to adjust the deadlines or requirements at all. However, if the employee is out for an extended time during the opportunity period, you may need to extend the opportunity period for the time of the absence to ensure that the employee has a chance to perform acceptably. Depending upon the nature of the work, an opportunity period shortened by approved absence may be valid if the work assignments and expectations were such that the employee still had the chance to demonstrate improved performance.
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  • The regulations require that an employee receive a decision in Part 432 actions within 30 days of the expiration of the 30-day notice period. This provision automatically gives you a 60-day period of time in which to work. Additionally, the Office of Personnel Management has issued regulations that give agencies the discretion to extend the initial 30-day notice period by another 30 days, so you are actually working within a 90-day timeframe. However, there are always those situations where even more time will be needed, perhaps because the employee has asked for a lengthy extension to prepare a response or the deciding official cannot gather and analyze all the information needed within the 90 days allowed. 5 CFR Part 432 lists six reasons that commonly cause delay and allows agencies to extend the notice period if those conditions exist. If your situation does not fall into any of the six categories, the regulations provide that OPM can approve an extension of the notice period based on a brief written request by the agency.
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