A Guide to Surviving PIPs for Federal Employees

“Performance improvement plan” (PIP) is one of the most dreaded phrases for both private sector employees and government employees. But while PIPs are optional for most private sector employees, they are mandatory for federal employees facing performance-related actions. Receiving a PIP does not necessarily mean you are about to lose your job, but it is a strong sign that your job is in jeopardy. If you’re a federal employee facing a PIP or an adverse action based on failure to improve after a PIP, our Norfolk federal employment attorneys can help you respond. 

Legal Basis for PIPs

Under 5 U.S.C. Chapter 43 (the statute dealing with the job performance of federal employees) each federal agency must develop performance appraisal systems that (1) establish performance standards that allow for the accurate evaluation of employee performance based on objective criteria; (2) communicate performance standards and critical elements of each employee’s position, and (3) assist employees in improving unacceptable performance. (See 5 U.S.C. § 4302(c).) 

Based on Chapter 43, the Office of Personnel Management (OPM) requires agencies to give employees facing performance-based actions an opportunity to address and correct unacceptable performance. Specifically, agencies are required to: 

• Notify the employee of the critical job element for which their performance is unacceptable in one or more critical elements 
• Inform the employee of the standards they must attain to demonstrate acceptable performance
• Inform the employee that they may be reduced in grade or terminated if their performance does not improve and remain at an acceptable level
• Give the employee a reasonable opportunity to demonstrate acceptable performance
• Offer assistance to the employee in improving their performance

5 C.F.R. § 432.104. 

Why You Might Receive a PIP

If you are facing a potential performance-based action under Chapter 43, you will receive a PIP and an opportunity to improve, as is required by federal law. While Chapter 75 addresses employee misconduct, Chapter 43 addresses performance issues. In other words, if you’re offered a PIP, it doesn’t necessarily mean you’ve done anything wrong — just that your work may be falling short of expectations in one or more ways. Importantly, your performance shortcoming must relate to a “critical element” of your job, which OPM defines as a work responsibility of such importance that unacceptable performance of that element would result in a determination that the employee’s overall performance is unacceptable. Your agency must prove that your performance deficiency is in a critical element and tell you what that critical element is. If you disagree with your agency that your alleged shortcoming is related to a critical element, contact a Norfolk federal employment attorney to discuss your options. 

What a PIP Should Include 

Each PIP is different because it is tailored to the specific needs of each employee. However, OPM recommends that a PIP should include at least the following elements: 

• The critical job element(s) being performed unacceptably 
• Examples of the employee’s unacceptable performance 
• An explanation of the minimal standards for the performance of that element
• An explanation of what the employee must do to demonstrate acceptable performance
• The assistance to be provided to help the employee improve during the improvement period
• How long the PIP will remain in effect
• The consequences of failing to improve 

If you have been offered a PIP, you may want to consider having a Norfolk federal employment attorney look it over to ensure that it complies with the necessary requirements. 

Tips for Successfully Responding to PIPs

Make Sure You Understand It

Ensure that the PIP contains the legally required elements found at 5 CFR § 432.104. Then, carefully review it to make sure you understand the specific critical element(s) at issue, what you must do to improve, and what the deadline is. If any part of the PIP is unclear, seek clarification from your supervisor. 

Document Everything

Keep detailed records of your work during the improvement period, especially your efforts to meet the goals identified in the PIP. Also, keep a record of all communications with your supervisor(s), as agencies are required by law to provide feedback and assistance. If the agency fails to offer or provide requested support, note it. 

Seek Feedback Frequently 

Keep in frequent contact with your supervisor to ensure that you are on the right track to meet their expectations. 

Request an Accommodation 

If you believe that your alleged shortcoming is due to a disability, whether physical or mental, you may request an accommodation under the Americans With Disabilities Act. Requesting an accommodation will not exempt you from the PIP, but it can show that you are making an effort to meet your performance expectations. 

Sustain Your Improvement 

Successfully making it through a PIP does not mean that you are off the hook. You must maintain an acceptable level of performance in the critical job elements for one year from the date the PIP began. If your performance declines during that time, the agency may proceed with removal or an adverse action. If your performance declines after that time, you may be placed on another PIP. 

Know What Comes Next 

If you fail to meet an acceptable level of performance during the improvement period, the agency may propose removal or an adverse action. The agency must give you 30 days advance notice of their proposed action that identifies both specific instances of unacceptable performance and the critical elements involved in those specific instances. (In some cases, the agency may extend that period, such as if you have requested an accommodation.) During that time, the agency will allow youto  answer its notice orally and in writing. At the end of the notice period, the agency will make a final written decision. If that decision does not go your way, you may appeal the agency action to the Merit Systems Protection Board. 

Fight For Your Job With Help From a Norfolk Federal Employment Attorney 

Federal employees are entitled to legal representation during the disciplinary process. If you’re facing a PIP or a post-PIP proposed removal or adverse action, please speak to a Norfolk federal employment attorney at Pierce / Jewett by calling 757-624-9323 or using our online contact form.