Questions? Find answers and general information quickly about Labor and Employee Relations using the Frequently Asked Questions (FAQs).
What are Douglas Factors?
This is a reference to a decision by the Merit Systems Protection Board that listed 12 factors that might be taken into consideration when deciding on the appropriate penalty in any adverse action. Your human resources office will be able to provide you with a copy of these factors. At this point, it is sufficient to understand that the factors force a deciding official to examine any issues that might support a more severe penalty as well as those circumstances that would convince the deciding official to lower the penalty.
How will I know if my employee is "disabled" and should be accommodated?
The question of who is "disabled" under the law is one that is still confusing to experts. In most cases, you will want to turn over any documentation you receive from the employee to the human resources office so that they can obtain a physician's review of the employee's medical documentation. Once you get a decision from the medical experts that the employee's condition significantly impacts his or her ability to perform, you will need to carefully consider what the employee is requesting in the way of accommodation and assess whether or not you can provide the accommodation.
When is a Performance Improvement Period required?
Under Part 432 of Title 5, an employee must be provided with a formal opportunity to improve before a removal or demotion action can be taken based on unacceptable performance. On the other hand, Part 752 of Title 5 does not require a supervisor to provide an employee with such an opportunity and a supervisor has the option of proposing an action for unacceptable performance under Part 752 procedures. One reason a supervisor may elect not to provide an opportunity period may be that the employee has several years of experience on the job and additional training would prove useless. Another reason may be that an employee has already received extensive informal training and additional training or assistance would seem unreasonable.
Is there a law that requires a union representative's presence in a meeting where an opportunity period notice is being issued?
No. Because the meeting is not disciplinary or investigatory in nature, and because it is not a formal discussion of general conditions of employment, there is no requirement to have a union representative present. The purpose of the meeting is to allow the supervisor to explain his or her expectations of the employee and describe any specific efforts that will be made to assist the employee in improving his or her performance. Although any employee who is being told that his or her work is unacceptable will view this is as a negative process, it is a meeting to discuss methods of assisting an employee and is not disciplinary or punitive in nature.
Can I use Chapter 75 to address poor performance?
When dealing with a poor performer, agencies can use Chapter 43 or Chapter 75, depending on the specific circumstances of the case. Proceeding under Chapter 43 allows an employee a chance to improve before action is taken. A Chapter 75 action is appropriate when an improvement period is not advisable or is unlikely to result in improvement.
Can a conduct-related performance problem be taken under Chapter 432?
Despite all of the training we receive on distinguishing between misconduct and poor performance issues, we all know that it is not always easy to decide how to address certain behavior on the job. While Chapter 432 is simply not designed to deal with misconduct issues, there are times when some types of misconduct lead to unacceptable performance. Take for example, the employee who never refuses an assignment, never says it is not going well, never fails to respond to supervisory inquiries, and never gets the job done. This could be a classic case of unacceptable performance that can be addressed through a PIP, and if necessary, by action under Part 432. Or it could be that the employee is acting deliberately, and the supervisor may need to be counseled on the option of taking action for failure to carry out assignments under Part 752.
What are the various ways of handling a WIGI approval that is shortly followed by an unacceptable rating?
Unfortunately, for many agencies, this has become an increasing problem. In most cases, it is unusual for an employee's performance to fall dramatically in a very short period of time. If you are faced with this type of situation, be sure that the supervisor has provided you with enough information/documentation that supports the employee's sudden drop in the level of performance. Remember, the approval of a WIGI is based upon the current rating of record which could have been issued any time in the year preceding the WIGI anniversary date. OPM's regulations on WIGIs states that if the last rating does not reflect current performance, a new rating should be issued to support a denial or approval of the WIGI. Therefore, an employee can reasonably count on the approval of a WIGI as statement that his or her performance is acceptable. Supervisors should be counseled that they may not refer to performance occurring before the date of the WIGI to demonstrate that the employee is performing unacceptably.
What factors should be considered when advising a supervisor on his or her decision to demote or remove?
This answer depends largely on whether the action is taken under Part 432 or Part 752. Under Part 432, you have the option of demotion or removal and the reasoning for choosing the action does not have to be defended. Furthermore, mitigation to a lesser action by a third party is not possible. So, if the requirements for proving unacceptable performance are met, and the employee is given an opportunity to improve, no third party can challenge the reasons for removing instead of demoting an employee. Therefore, a decision should be based on an analysis of whether an employee can function acceptably in a lower graded position or not. Some agencies may have policies that require supervisors to explore demotion options before going to removal, but that policy would be an internal policy, not one that governs all agencies.
What is the difference between probationary and trial employees and what are their appeal rights?
The probationary/trial period is the final step in the hiring process of a new employee. The probationary period can be a highly effective tool to evaluate a candidate's potential to be an asset to an agency before an appointment becomes final. However, for the probationary period to be used effectively, agencies must understand when an individual is considered to have full procedural and appeal rights, regardless of any probationary status.
Until the probationary period has been completed, a probationer is technically still an applicant for an appointment. The term "probationary period" generally applies to employees in the competitive service. "Trial period," by contrast, generally applies to employees in the excepted service, as well as to some appointments in the competitive service, such as term appointments, which have a one-year trial period set by the Office of Personnel Management. The term "probation" is also used to refer to the one-year trial period served by individuals who are newly appointed to supervisory positions.
During this period, probationary employees can be terminated for any perceived deficiency in performance or conduct, with minimal procedural requirements and without the need to meet the stringent "efficiency of the service" standard that governs the removal of tenured employees. However, a probationary employee does have some limited appeal rights to the MSPB (5 CFR §315.806). To assist with determining appeal rights, please review the Competitive Service Definition of Employee flowchart (.ppt).
Do I have to give a probationary/trial employee an opportunity to improve?
No. The law and regulations specifically exclude probationary/trial employees from the procedures that require the use of an opportunity to improve. This exclusion is because the entire probationary period is similar to an opportunity period. These employees should receive closer supervision, instruction, and training as needed during the first year of their employment.
What does "nexus" mean?
The term "nexus" refers to the connection that must exist between conduct or behavior forming the basis for an adverse action and the discernible or foreseeable negative impact the conduct or behavior has on an agency's operations. Nexus comes into play twice in most adverse actions. First, establishing nexus is necessary to prove that the action promotes the efficiency of the service. Second, nexus is often a factor in determining the appropriate penalty for the conduct or behavior.
Sometimes nexus is relatively easy to demonstrate or prove. For example, with offenses such as insubordination or failure to show up for work, the connection between the offense and the adverse impact on the efficiency of the service is clear. But that isn't always the case. When the misconduct occurs off duty and away from work, the nexus is less obvious. However, some off-duty misconduct can be so egregious that the nexus "speaks for itself."
What is a “constructive suspension”?
An employee's voluntary absence from work is not appealable. If, however an agency bars an employee from duty for more than 14 days, the employee's absence is considered a constructive suspension appealable to the Merit Systems Protection Board. (See Johnson v. U.S. Postal Service, 109 LRP 19069 , 110 MSPR 679 (MSPB 2009)). The MSPB has recognized that constructive suspension claims may arise in two situations: 1) when an agency places an employee on enforced leave pending an inquiry into his ability to perform; or 2) when an employee who is absent from work for medical reasons asks to return to work with altered duties, and the agency denies the request.
What is “harmful error”?
Harmful error is error by the agency in the application of its procedures that is likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. The burden is on the appellant to show that the error was harmful, i.e., that it caused substantial harm or prejudice to his or her rights.
What is ex parte communication?
Ex parte communication is oral or written communication between a third party (such as the Merit Systems Protection Board or an agency deciding official) and one or more parties to a dispute that does not include another party to the issue in controversy. In regard to MSPB appeals, ex parte communication is addressed differently based on whether the communication is with an agency deciding official or an MSPB decision-making official. When improper ex parte communication occurs, an appellant's due process rights are violated and remedial action will be necessary.
What is excessive absence?
Excessive absenteeism can be defined as either a long-term continuous absence with no foreseeable end in sight or a pattern of frequent unplanned absences from work. The Merit Systems Protection Board and the courts have held that an employee's absence, by its very nature, adversely affects an agency's ability to accomplish its mission. Frequent and unscheduled absences, as well as prolonged absences from work with no foreseeable end, may form the basis for a proposed adverse action.
What’s the difference between insubordination and failure to follow instructions?
Insubordination is a serious offense that involves the deliberate failure or refusal to comply with the directions or orders of a superior. Implicit in any charge of insubordination is the assumption that an understandably clear order or direction was given, that it was put forth by an individual with the authority to do so, that it was not obeyed, and that it was within the ability of the recipient to do so. In only a few, limited circumstances are employees free of the obligation to follow orders or directions without liability to a charge of insubordination.
Until it issued Hamilton v. U.S. Postal Service, 96 FMSR 5357, 71 MSPR 547 (MSPB 1996), the Merit Systems Protection Board treated a charge of failure to follow instructions as synonymous with one of insubordination. Now, if an agency is uncertain of its ability to meet the MSPB's standards of proof in establishing the elements of a charge of insubordination -- particularly willful intent to disobey -- it can choose to use the easier-to-prove charge of failure to follow instructions.
What’s the difference between falsification and lack of candor?
Falsification is a term used to refer to a broad array of offenses, ranging from the padding of expense reimbursement claims to omissions on employment applications and providing false answers in response to questions asked during an investigation. When the specific term "falsification" is used the agency is generally required to establish that the employee knowingly provided false or inaccurate information, and that it was his/her intent to deceive or defraud. Consequently, many employee relations professionals avoid the use of the term falsification in all but the most airtight cases, preferring instead to use terms that do not require proof of intent; such as lack of candor or providing inaccurate information.
What is substantial evidence?
Substantial evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree. 5 CFR 1201.56 (c)(1).
For the MSPB to sustain an agency's action in a Chapter 43 case, the agency must show by substantial evidence that: 1) the appellant's performance fails to meet the established performance standards in one or more critical elements of his position; 2) the agency established performance standards and critical elements and communicated them to the appellant at the beginning of the performance appraisal period; 3) the agency warned the appellant of the inadequacies of his performance during the appraisal period and gave him an adequate opportunity to improve; and 4) after an adequate improvement period, the appellant's performance remained unacceptable in at least one critical element. (Gonzalez v. Department of Transportation, 108 LRP 38096, 109 MSPR 250 (MSPB 2008)).
What is a preponderance of evidence?
Preponderant evidence is that degree of relevant evident that a reasonable person, considering the record as a whole, would accept as sufficient to find that a fact is more likely to be true than untrue. Under 5 USC 7513, an agency can take adverse action against an employee only for such cause as will promote the efficiency of the service. To establish this nexus, an agency must show by a preponderance of the evidence that the employee's misconduct is likely to have an adverse effect on the agency's functioning. (Mings v. Department of Justice, 87 FMSR 7013, 813 F.2d 384 (Fed. Cir. 1987)).