OPM: At the conclusion of the PIP, it should not be a surprise to the employee whether he or she will be retained, reduced in grade, or removed. Image: Andrii Yalanskyi/Shutterstock.com
By: FEDweek StaffAn OPM memo to agencies revising many of the policies governing performance evaluations of federal employees (see related story) includes an emphasis on taking disciplinary actions up to firing on grounds of under-performance.
“Agencies should review and update their performance and disciplinary policies to ensure that poor performers can be swiftly removed, reduced in grade, or reassigned,” it says.
Many of the policies in the directive reflect those in executive orders of the first Trump administration that were delayed by legal challenges and went into effect only late in that term—only to be promptly revoked by the Biden administration.
Prominent among them are limiting the “performance improvement period”—when employees are put on notice of performance deficiencies and given an opportunity to improve—to the 30-day minimum set by a section of civil service law called Chapter 43. While agencies are required to provide help to the employee, the guidance stresses setting “measurable goals and timelines for achieving those goals along with the outcomes should the goals not be met.”
“At the conclusion of the PIP, it should not be a surprise to the employee whether he or she will be retained, reduced in grade, or removed,” it says.
It also noted that agencies can take disciplinary actions on performance grounds under separate provisions, called Chapter 75. Those require that agencies meet a higher standard of proof but “do not, however, require an agency to provide the employee with a performance improvement period.”
“Nor do they require that an agency establish a specific standard of performance in advance of taking an adverse action. Rather, the agency must establish by a preponderance of the evidence that its measurement of the employee’s performance is accurate and reasonable,” it says.
The memo also renews policies for taking discipline for misconduct under Chapter 75 set by the executive orders from the first Trump term that Biden had revoked; Trump in turn overrode Biden’s order early this year, but that did not automatically reinstate those orders, OPM earlier had told agencies.
Those policies include that: in selecting a penalty there is no requirement for progressive discipline; suspension “should not be a substitute for removal in circumstances in which removal would be appropriate”; the agency should “consider all past misconduct and past work record, not only similar past misconduct”; and that agencies using tables of penalties “may deviate as circumstances warrant.”
It adds that employees who will be placed under the planned Schedule Policy/Career will not have rights under either of those sections of law, which will allow agencies “to quickly remove employees from critical positions who engage in misconduct, perform poorly, or undermine the democratic process by intentionally subverting Presidential directives.”
The comment period on proposed rules for Schedule Policy/Career expired recently and OPM is expected to act promptly to finalize them.
Other requirements in the memo seek to better quantify the state of disciplinary actions against federal employees. Agencies are to report by July 31 year-to-date information including the number of employees put on performance improvement plans how many of those plans exceeded 30 days; the number of adverse personnel actions taken against employees by type of action; the number and key terms of any settlements; and the outcome of any formal appeals.
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