Legal Reference

Federal agencies may demote or remove an employee for unacceptable performance under Chapter 43, of Title 5 of the United States Code (5 CFR 432). OPM regulations require an agency that seeks to remove or demote an employee for poor performance to:

• inform the employee of the critical job elements in which he or she is deficient;
• inform the employee what is required under those critical elements;
• inform the employee that failure to fulfill the elements may lead to demotion or removal;
• provide the employee an opportunity to improve his or her performance, also known as an “opportunity period;” and
• assist the employee in improving his or her performance.

Critical Elements—Critical job elements must be based on the employee’s position of record. Also, an agency may not substantially change the employee’s performance standards at the beginning of the opportunity period and then find that the employee’s performance is unacceptable under the new standards. However, an agency may limit an employee’s duties and responsibilities during the opportunity period to specific parts of his or her regular duties, which is often an effective way to focus an employee on the areas of deficiency.

Opportunity to Improve—Many federal agencies use performance improvement plans, or PIPs, to meet the requirement for an opportunity to improve. How¬ever, the format and terminology matter less than the substance. Note: An agency may notify the employee of performance deficiencies as soon as they become known; it need not wait until an annual performance review to do so.
This period is designed to give the employee an opportunity to bring his or her performance up to an acceptable level. It is also the supervisor’s opportunity to clearly express his or her expectations and the consequences of not meeting those expectations. If the employee fails to improve to an acceptable level by the end of the opportunity period, further action is war¬ranted.

While PIP policies vary among agencies, they have some general features in common. If a supervisor places an employee onto a PIP, he or she must do so in writing and must describe specific areas in which the employee is not meeting performance expectations, and specifically describe what constitutes an acceptable level. The employee should be informed of how his or her performance is being assessed, and what specific actions are required to improve. If training or other measures could assist the employee in improving performance, they should be prescribed in the PIP. Also, a PIP should contain the proposed consequences if the performance does not improve, or is not sustained at an acceptable level once improved.

There is no definitive rule on the length of the opportunity period, although many run 90 or 120 days. The sole criterion is that the employee must have a reason¬able opportunity to improve. How long is “reasonable” depends on the position and the duties involved, but the Merit Systems Protection Board has found opportunity periods of 30 days, and even less, acceptable in some instances. If an employee is on extended leave during the opportunity period, extension of the period should be considered in order to ensure a reasonable opportunity to improve.

When an employee’s performance improves to an acceptable level, but then, within a year, relapses in the same area in which the improvement had occurred, the agency may remove or demote the employee without affording a new opportunity to improve.