When faced with a Performance Improvement Plan, proposed removal or proposed demotion for unacceptable performance, employees typically look to challenge the criticisms of the performance. However, before challenging the substance of the performance criticisms, you should first review your performance standards to see if the standards are susceptible to challenge.
An agency cannot prove unacceptable performance sufficient to substantiate a downgrade or removal without first establishing that the performance action is being taken under valid performance standards. In order to be valid, performance standards must comply with statutory requirements of 5 USC Chapter 43; otherwise the performance standards are fatally flawed. Chapter 43 requires that performance standards permit the accurate evaluation of job performance on the basis of objective criteria. Chapter 43 also states that performance standards must clearly apprise the employee of the minimum standard of performance required and must be reasonable, sufficient in the circumstances to permit accurate measurement of performance, and adequate to inform the employees of what is necessary to achieve an acceptable performance rating.
An agency is required to demonstrate that the performance standards are reasonable, realistic and attainable to protect the employee from arbitrary appraisal of the employee’s performance. Performance standards are to be sufficiently specific so as to provide a firm benchmark toward which an employee must aim performance. Measuring performance against valid performance standards is a substantive right of the employee.
That a performance standard must be objective does not mean that the performance standard must be numerical. For instance, agencies are given considerable latitude and deference in defining standards and establishing measurement techniques for the evaluation of the performance of professional employees because, especially in the case of professional employees, it may not be feasible to incorporate specific deadlines and numeric measures in a performance standard. If a performance standard is numerical, an agency must still prove the reasonableness of the standard. For instance, a numerical standard can be challenged as unreasonable if the standard requires an inordinately high accuracy rate for the work performed. Also, when reviewing a numerical standard, check to see if the standard relates to something measurable–in other words, that there exists some method of selecting examples of unacceptable performance related to numerical standard.
Performance standards that are subject to interpretation and subjective evaluation can be challenged as impermissibly subjective, vague and ambiguous. For example, standards that include the use of the words “sometimes,” “rarely,” “occasionally” or standards that require that work must be produced first in final form with no need for revision or correction are susceptible to challenge as impermissibly vague. Also, backwards standards can also be challenged as impermissibly vague. Backwards standards are standards that describe performance in terms of what an employee should not do, rather than identifying acceptable performance, or what an employee should do.
In addition, absolute standards, standards that permit removal or demotion for one instance of poor performance, can be challenged as unreasonable. For example, a standard may be impermissibly absolute if it merely describes the task that an employee is to perform without describing how much work is to be performed to achieve acceptable performance. The standard can be challenged as absolute in such a case because it suggests that acceptable performance has been met only if the tasks are performed exactly as described in the standard.
The above describes a few examples of ways to challenge your performance standards. The bottom line is that, when faced with a performance action for unacceptable performance, challenging your performance standards can be a powerful method for overcoming performance actions.
** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **