Fedweek

Criticisms that federal agencies don’t sufficiently deal with underperforming employees were a major motivation behind the last major reform of federal personnel law 40 years ago but in the time since the issue has persisted, largely due to how that law has been carried out, the MSPB has said.

In a publication on the results of the 1978 Civil Service Reform Act, the MSPB said that “one of the CSRA’s goals was to make it easier for agencies to remove poor performers” by adding a section to civil service law, called Chapter 43, setting up procedures for overall management of employee performance. In recent years, though, that has been used in only four-tenths percent of performance-based disciplinary actions despite requiring a lower level of proof for management than the alternative “Chapter 75” process for taking adverse actions.

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But MSPB said that its research “indicates that the key to addressing poor performance lies not in the language of the laws and regulations, but in effective implementation and having supervisors who are willing, prepared, and permitted to address poor performance.”

MSPB cited one of its studies concluding that “the major drawbacks of Chapter 43 procedures included the amount of documentation involved, supervisors’ unwillingness to follow through because of these documentation requirements, and the possibility of the action being reversed because of technicalities not properly addressed in the process.”

For example, it said that OPM rules to carry out that section of the law require that agencies inform employees that they are failing in a critical element of their jobs and to provide assistance, an opportunity to improve and a warning about the potential consequences of failing to improve. While MSPB has held that those requirement can be fulfilled in various ways, “not only do many agencies have policies requiring formal improvement plans, but many require additional steps, such as a minimum duration for the improvement period or offering an informal improvement opportunity before the official improvement period.”

Shortening the process of taking disciplinary actions against poor performers has been an ongoing theme of the Trump administration and of some members of Congress. Several of the recent executive orders on the disciplinary and union matters would limit agency commitments to using formal performance improvement periods, restrict them to 30 days when they are used, and urge agencies to use the Chapter 75 disciplinary process that doesn’t require such periods, even though that process carries a higher burden of proof for management in an appeal.