U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

REMINDER! In performance based actions, the focus is on the standard at the level of retention. That is the performance level that an employee must meet to retain his or her job. Check your agency program to determine whether employees must achieve level 2 (Marginal or Minimally Successful) or level 3 (Fully Successful or Pass) in order to stay in the job, and determine if these standards would likely withstand third party review. See discussion of case law on performance standards, including "backwards standards" and "absolute standards," in the Compendium of Significant Decisions Involving Performance-Based Actions (1984-1988) and Compendium of Significant Decisions Involving Performance-Based Actions (1988-2001).

Supervisory Counseling

• Check agency policies and collective bargaining agreements for specific provisions regarding performance counseling. Advise supervisors of these provisions.
• Supervisors should be able to express in which critical element(s) the employee's performance is falling short or has become unacceptable.
• If the agency program provides for a level 2 (Marginal), make sure the supervisor is able to tell the employee whether his or her work has fallen to the marginal level or whether it has become unacceptable.
• Employees should be informed of some examples of their poor performance and explanations of what is wrong with their work.
• Supervisors should be able to explain how the work should be done correctly and should make their expectations clear.
• Advise supervisors to encourage employee participation in the discussion as a means of discovering the cause of the employee's performance difficulties.
• Advise supervisors to summarize their comments in writing and provide the employee with a copy of the summary.
• Agree to meet with the supervisor again in a certain time period. Follow up!

Checklist for Notice of Unacceptable Preformance
& Opportunity to Improve

REMINDER! Review all internal agency policies and collective bargaining agreement provisions before providing advice and guidance on the development of an opportunity notice or "performance improvement plan" (PIP) notice. These provisions may impact on the duration, structure, and nature of assistance provided during the opportunity to improve.

Evidence of Unacceptable Performance

• Meet with the supervisor to review documentation of unacceptable performance.
• Categorize documentation by critical element.
• Make sure the PIP notice identifies which critical elements the employee is failing.
• Include examples of performance deficiencies in the PIP notice to demonstrate what constitutes unacceptable performance in the critical element.

Performance Standards

• Make sure the PIP notice informs the employee of the level of performance which must be achieved in order to stay in the job. This will be Level 2 (Marginal) or Level 3 (Fully Successful or Pass) depending upon your agency's performance program.
• Include the language of the performance standard in the PIP notice or attach a copy.
• If the standard is numerical, assist the supervisor in pro-rating the annual numerical requirement to align with the duration of the opportunity period.
• If the standard has components, the supervisor must make clear in the notice that all components must be met in order to perform acceptably (or specify which of the components are crucial and must be met in order to succeed).

Improvement Needed

• The notice should clarify the performance expectations in the standard when necessary. Be as specific as possible.
• The notice must inform the employee of what he or she must do in order to improve.
• Within the body of the notice or as an attachment, consider providing examples, models, checklists, guides, standard operating procedures, etc.
• Advise the supervisor to consider the usefulness of using a mentor from within the organization to work with the employee and include this information in the notice.

Supervisory Assistance

• Make the supervisor's role clear concerning how the employee should seek help.
• The notice should establish the time and location of any routine performance counseling meetings.
• The notice should identify a fall-back person for the employee to contact for help if supervisor is not available.

Consideration of Training Needs

• Have the supervisor consider any requests from the employee for training.
• Determine whether on-the-job training would be appropriate.
• Consider the possibility and availability of computer-assisted training.

*NOTE: Formal training is not a requirement when providing an opportunity to improve.

Structure/Consequences

• The notice should state the duration of the improvement period.
• The notice should state the possible consequences (demotion, reassignment, removal) if the employee fails to improve to an acceptable level.
• The notice should explain how the supervisor will monitor performance.
• The notice should explain how the supervisor addressed an employee request for reasonable accommodation, if any such request was made. If reasonable accommodation was made, the notice should explain how that may impact on the opportunity to improve, if at all.

Checklist for Proposal and Decision Notices in Performance-Based Actions

REMINDER! Review all internal agency policies and collective bargaining agreement provisions before providing advice and guidance on the development of a performance-based proposal or decision notice. Incorporate agency-specific procedures within the notices.

Proposal Notice

• All performance documentation must be organized by critical element.
• Supervisor must analyze documentation and determine success or failure at the conclusion of the opportunity to improve. (NOTE: If employee has successfully improved to the acceptable level, provide the employee with a letter that congratulates him or her and informs the employee of the need to maintain performance at an acceptable level.)
• Supervisor must decide what action will be proposed. No proposal notice is required if the supervisor elects to reassign the employee.
• Proposal notice must state that either removal or demotion is being proposed and must state which critical element(s) the employee failed.
• For each critical element, notice must include examples of unacceptable performance during the opportunity period which form the basis for the proposed action. (NOTE: Agencies may elect to cite unacceptable performance which occurred during the one year preceding the proposal notice.)
• Notice should summarize the performance improvement plan, including any assistance or training provided to the employee.
• Notice should explain how the supervisor addressed an employee request for reasonable accommodation, if any such request was made. If reasonable accommodation was made, the notice should explain how that impacted on the opportunity to improve, if at all.
• Notice must notify the employee that an action will be effected no earlier than 30 days from the date of the notice and that a written decision will be provided no later than 30 days after the advance notice period ends.*
• Notice must include employee's right to review the record, obtain representation, make an oral and/or written response, and receive a written decision in a timely manner.

  * Agencies have the authority to extend the advance notice period by 30 days and may seek OPM approval of further extensions. The regulations require that a written decision be rendered no later than 30 days after the conclusion of the 30 day advance notice period. Therefore, without any extensions, an agency would be required to issue a decision within 60 days after the date of the proposed action.

Decision Notice

• Decision notice must state whether or not the deciding official found sufficient evidence to support the proposed action. If not, the decision will inform the employee that no action will be taken.
• Notice must reflect consideration of the employee's response, if one was made.
• Notice must state in which critical element(s) the deciding official found the employee to be performing at an unacceptable level.
• Notice must include employee's right to challenge the agency's action through the negotiated grievance procedure (for bargaining unit employees) or by appeal to the Merit Systems Protection Board. (NOTE: If medical issues were raised by an employee who has the requisite years of service, an agency shall provide the employee with information on disability retirement.)
• Notice must state the effective date of the action.